Abrams v. Johnson , 65 Ala. 465 ( 1880 )

STONE, J.

— Section-8268 of the Code of 1876 declares, that “ attachments may be levied on . . personal property of the defendant; . and the officer executing the writ must indorse the levy or service thereon, and, if practicable, take the property in his possession, unless replevied, as hereinafter described.” Section 3289 : “ The defendant in attachment, or, in his absence, a stranger, may replevy the goods or chattels attached, by executing bond,”&c.

In French v. Stanley, 21 Maine, 512, the question was, whether an attachment had been levied oñ a mare. The deputy-sheriff was the witness, and he testified, “ that he got into the wagon, in which the mare was harnessed, and told Barker that he attached her as his property ; and he thinks Barker and he rode down the street together, in the wagon, at the same time. He left the mare, as he found her, in Barker’s possession, with a promise, as he says, on the part of Barker, to get a receipt for her.” The court said : “ This can not be regarded as proving an attachment of the mare. It does not appear that she had been under his control, for a moment; and if it could, be considered that he had an instantaneous possession, it was instantaneously abandoned.”

In Rand v. Sargent, 23 Maine, 326, the action was trover, for the conversion of a pair of oxen. The conversion relied on was an alleged levy of an attachment. The court said : “ The oxen alleged to have been converted by the defendant to his own use, were never actually in his possession. He merely said to the person having them in custody, and who was alleged to be the debtor in the precept, which the defendant had in his possession for service, that he was ordered to attach them as his property, and must do so, and that he did -attach them ; and thereupon the alleged debtor procured a person, not being the plaintiff, to give a receipt for them, stipulating to deliver them to the defendant, as usual in casesof attachment of personal property on mesne process. . It is undoubtedly true, as laid down in the elementary works cited, that the slightest actual interference, disturbing another in his enjoyment of the possession of his property, unlawfully, is a trespass. But the defendant, in this case, never for a moment disturbed the possession of the person having the oxen in custody.”

In Polley v. Lenox Iron Works, 15 Gray, 513, the court, arguendo, said: “ Possession is necessary to constitute, or to preserve and continue an attachment.” In Bailey v. Adams, 14 Wend. 201, the court said: “I do not think enough was done by the defendant to constitute a conversion. He directed a levy upon the wagon, while unfinished at the shop of Drake ; he did not take possession of it, but left it as he found it; and as soon as he was informed that plaintiff claimed the wagon, he gave him notice that he relinquished all claim or right to it. The actual possession of the property was not changed.” See; also, Drake on Attachment, § 198; Tidd’s Practice, 1005.

To constitute a levy on personal property, the officer must assume dominion over it. He must not only have a view of the property, but he must assert his title to it, by such acts as would render him chargeable as a trespasser, but for the protection of the process. — Cobb v. Gage, 7 Ala. 619; Cawthorn v. McCraw, 9 Ala. 519; Foster v. Mabe, 4 Ala. 402; Goode v. Longmire, 35 Ala. 668; Crocker on Sheriffs, section 369. Under the undisputed facts of this case, appellant, the constable, never obtained dominion over the chattels in-* dorsed in his levy — never disturbed the possession — never put himself in condition that an action of trespass, trover, or detinue, could have been maintained against him ; and we hold that he never, in fact, levied the attachment, so as to fasten a lien on the property. — Crocker on Sheriffs, sections 431, 436,443; Borer on Judicial Sales, §§ 1243-4.

There is no apparent conflict in the testimony in this case; and it proves that, with due “diligence, the constable could have levied the attachment, by taking control and dominion over the property. The testimony is, that the property was sufficient in value to pay the plaintiff’s demand. The only remaining question is, are the proceedings sufficient to uphold the judgment. This was a summary proceeding, instituted before a justice of the peace, under the following provisions of the Code of 1876 : Sec. 3663 : “ Judgments, not exceeding one hundred dollars, may be rendered, on motion, by justices, in favor of the party aggrieved, or the other persons herein specified, against the persons hereinafter named ; five days’ notice thereof in writing being given, specifying the cause for which such motion will be made, and the time and place.” Sec. 3671: “ For failing to execute process of attachment, which, by due diligence, could have been executed, whereby the plaintiff has lost his debt, judgment for the amount of the debt and interest.”

It will be observed that the notice to the officer, contemplated by these sections, must specify the cause for which the motion is made. The cause, in the present case, was the failure to execute the attachment, which by due diligence could have been executed. The notice, to conform to the statute, should have briefly described the attachment— when, by, and between whom it was issued ; when received by the constable, and that he had failed to execute it, when, by due diligence, he could have executed it, whereby the plaintiff had lost his debt. These constitute the cause of the motion which, under the statute, the notice should specify. It was not necessary to file a written motion before the justice. Pleadings, except, perhaps, special and personal defenses, and some other statutory proceedings, while they are not improper, are not necessary in suits before justices ; and when resorted to, they are not scrutinized so narrowly as pleadings in courts of record are. Tbe notice served in this case did not specify the cause for which the motion would be made; nor, in fact, did the written motion filed specify the cause sufficiently, if the rights of the parties depended alone on the sections of the Code copied above.

The present case was an appeal from a justice’s judgment, and the amount in controversy was less than twenty dollars. Section 312i of the Code of 1876 provides, that “ appeals and certioraris from judgments of justices of the peacemustbe tried . according to equity and justice, without regard to any defects in the summons or other process before the justice.” Section 3122 : “ When the sum claimed does not exceed twenty dollars, the cause must be tried by the court, without the intervention of a jury ; when it exceeds twenty dollars, upon an issue to be made up under the direction of the court, and tried by a jury.” These sections precisely cover this case. The defect in the notice could not be considered on the appeal, and no written statement of the cause of action was necessary in the Circuit Court. — Staggers v. Washington, 56 Ala. 225; Reynolds v. Harris, 62 Ala. 415.

We are not to be understood as affirming, or intending to affirm, that the constable, Abrams, if proceeded against for hot preserving the cotton and fodder indorsed as levied on, could have defended himself, on the ground that he had not levied the attachment. His return would have precluded that defense. All we decide is, that he did not so perfect his levy, as to make it a defense to a proceeding against him for not levying the attachment.

The judgment is affirmed.