Eslava v. Jones , 83 Ala. 139 ( 1887 )

CLOPTON, J.

— -When an individual suffers damages by any act of negligence or misconduct of a public officer, in respect to any ministerial duty annexed to his office, he is answerable to such individual in a civil action; but, in such case, a wrong committed by the officer, and resulting damage to. the party complaining, must concur, to give title to a remedy. — Bellinger v. Glenn, 80 Ala. 190. While actual or specific damage is not indispensable, the party complaining, however amiss may be the act, must have suffered injury, either actual or implied, or presumed, from an invasion of his rights, or from a breach of duty owing to him.

The grievance alleged, is the issue by the defendant, as clerk of the Circuit Court, of a venditioni exponas, commanding the sheriff to sell certain lands therein described, which had been previously levied on by an execution issued on a judgment in favor of Charles Farley against Celestino Eslava, and the sale suspended by the interposition and contest of a claim of exemption, during the pendency of which the defendant in execution died. The venditioni exponas, and the sale of the lands thereunder, were held to be a nullity, conferring no title on the purchaser, in Sims v. Eslava, 74 Ala. 594, on the ground that there had been no termination of the contest in favor of the plaintiff. The appellant, who was plaintiff in the Circuit Court, was not a party, nor privy, in the case in which the judgment was rendered, and was not in any way connected with the judgment or'the writ. In¿;respect to the judgment or process thereon, the clerk owed ho official duty to the plaintiff, and no damages resulted to her such as the law implies from the wrongful issue of the writ. The act of the clerk, though illegal and unauthorized, did not confer on plaintiff any legal claim, any right of action against him, unless, on the facts averred, she sustained special damages, which are recoverable. — Dehn v. Heckman, 12 Ohio St. 181; Ware v. Bond, 2 Bond, 267; Harrington v. Ward, 9 Mass. 251.

The only special damages claimed are, that plaintiff was compelled to pay divers costs, expenses and attorney’s fees, in defense of a suit to recover possessiont.of the lands, brought against her by the purchaser at the sale under the venditioni exponas, and in defense of the appeal from the judgment rendered in the suit in her favor, which was affirmed on appeal. The only title or right to the lands shown by the averments of the complaint, is such as the law implies from plaintiff’s possession at the time the writ was issued, and the lands were sold. The levy of an execution on lands, unlike a levy and seizure of personal property, confers no right or title on the sheriff, and such levy does not constitute him a trespasser, though the lands may not . belong to the defendant in execution, and may be in the possession of a third person. The isstie of the venditioni ex-ponas, and the sale thereunder, did not operate to- impair or affect the title or right of the plaintiff, nor to injure or disturb her possession. The utmost that can be said is, that the purchaser is thereby armed with the power to bring suit. The damages claimed are not the natural and proximate consequences of issuing the writ, but of tbe institution of tbe suit.

However groundless may be the claim, no action lies at tbe suit of tbe defendant, to recover costs and expenses incurred in tbe defense of an action in any of tbe ordinary forms — for a mere wrongful resort to legal process. To constitute tbe misuse or abuse of legal process, in tbe common-law or ordinary remedies, actionable, malice and want of probable cause must conjoin. — Tucker v. Adams, 52 Ala. 254; Bolling v. Tate, 65 Ala. 417. Tbougb tbe venditioni ex-ponas was a nullity, and tbe purchaser acquired no title by tbe sale, tbe plaintiff could not maintain an action against him, to recover tbe costs and expenses paid by her in defense of tbe suit to recover possession of tbe lands. Tbe bringing tbe suit was tbe act. of tbe purchaser — the intervention of another cause, by which tbe plaintiff can not pass, and support an action against tbe clerk to recover damages for which tbe immediate actor is not suable. Tbougb tbe illegal and unauthorized act of tbe clerk may have furnished the occasion, it was not the efficient and dominant cause, which put tbe intervening and immediate cause in operation. Tbe issue of tbe venditioni exponas is, as to tbe plaintiff, damnum absque injuria.

Affirmed.