Albright v. Mills , 86 Ala. 324 ( 1888 )

SOMERVILLE, J.

The action is one brought by the appellee, Mills, against the sheriff of Lee county and his sureties, for a wrongful levy on the plaintiff’s crops, under a writ of attachment su5d out against one George S. Mills, the purpose of the attachment being to enforce a lien created for advances to make crops under the provisions of section 3286 of the Code of 1886.

The statute expressly declares, that every official bond shall be obligatory on the principal and sureties, for any breach of condition, “as well by'any torongful act committed under color of his [the principal’s | office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” — Code, 1886, § 273, sub-div. 3; Code, 1876, § 179. This statute was intended to meet the rule formerly announced in Simmons v. Hancock, 2 Ala. 728, that the sureties of a sheriff would not be responsible for any malfeasance on such officer’s part, unless the malfeasance included also a misfeasance. In McElhaney v. Qilleland, 30 Ala. 183, it was accordingly held, under this statute, then embodied in section 130 of the Code of 18.52, that the sureties on a constable’s bond were liable for their principal’s wongful act, committed in taking or selling the property of the defendant, which was exempt from levy and sale at law, the tortious act itself being a trespass. So, in Kelly v. Moore, 51 Ala. 364, the sureties on the official bond of a justice of the peace were held liable for a wrongful arrest and imprisonment of the plaintiff, the arrest being without authority, but under color of office. It was ruled as far back as 1825, in this State, that the sheriff was liable for a trespass committed by his deputy under color of office. — Prewitt v. Neal, Minor’s Rep. 386.

Whatever may be the rule apart from the statute, there can be no doubt of the fact that, under its influence, a sheriff’s sureties are oridinarily responsible for a trespass committed by him in levying an execution or attachment, issued against one person, upon the goods of another who is a stranger to the process, unless the statute authorize such levy; such an act being one committed under color of his office, which means under the pretended or arrogated authority of his office. — Charles v. Haskins, 11 Iowa, 329; s. a., 77 Amer. Dec. 148; State v. Holmes, 28 N. J. Law, 224; Binmore on Sheriffs, § 25; Harlow’s Sheriffs & Constables, § 343; City of Lowell v. Parker, 10 Met, 309; s. c., 43 Am. Dec. 436; Murfree on Official Bonds, §226; Clark v. Lamb, 76 Ala. 406.

In this view of the law, the act of trespass in question, being committed under color of authority, was a breach of the bond, for which the sureties were liable. It was alleged in the original complaint to have been committed under color of office; and there was no error in allowing the complaint to be amended, so as to aver that it was a breach of the bond. The form of action was not changed by the amendment from one ex delicto to one ex contractu, and the motion to strike out the amendment was therefore properly overruled.

The other grounds of demurrer to the amended complaint were manifestly bad.

The writ of attachment in this case directs the sheriff to seize “so much of the crops raised by said (George S.) Mills, or his tenants,” on the premises cultivated by them in Lee county, during the year 1883, as was sufficient to satisfy the debt. It is insisted that the sheriff was justified by the process in levying on the crops of the plaintiff, who was a tenant of the defendant in attachment, George S. Mills. Upon the correctness of this contention the case must turn. The statute only reiterates the rule of the common law, in asserting that “whenever it appears that process is regular on its face, and is issued by competent authority, a sheriff, or other ministerial officer, is justified in the execution of the same, whatever may be the defect in the proceedings on which it was issued.” — Code, 1876, § 3041; Code, 1886, §2776; Meyer v. Hearst, 75 Ala. 390; Clark v. Lamb, 76 Ala. 406.

The statute simply means, that the law will protect a sheriff, or other ministerial officer, in the execution of process regular on its face, provided it does not disclose a want of jurisdiction to issue it, on the part of the court from which it emanates. If, however, an inspection of the process discloses the fact that the process is void for the want of jurisdiction of the subject-matter or parties, the process can afford the officer no protection, and he proceeds under it at his peril. — Murfree on Sheriffs, § 903; § 2^4. In other words, he is justified in obeying all precepts committed to him to be served, “if they issue from competent authority, and with legal regularity, and [these facts] so appear on their face.” Watson v. Watson, 9 Conn. 140; s. c., 23 Amer. Dec. 324.

This process is not regular on its face, so far as concerns any one except George S. Mills, the defendant in attachment. The tenants whose crops are ordered to be seized were not named, nor were they parties to the suit; and this is obvious from the face of the writ. It is equally apparent that the court, which issued the writ, had no jurisdiction to order such a seizure. It could as lawfully have made the writ run against George S. Mills and his neighbors, or his family, as against said Mills and his tenants; and the sheriff was charged with a knowledge of the law in this matter, as in all others, ignorance of law or even good faith furnishing him no excuse for the trespass. The statute, it is true, authorizes a landlord to enforce by attachment his lien for rent and advances against the crops grown on the rented premises, and the writ may, in a certain event, be levied on the crops of an under-tenant; but this attachment is not sued out by a landlord. — Code, 1886, § 3066; Code, 1876, § 3476; Agee v. Meyer, 71 Ala. 88. But a crop-lien note executed to secure advances obtained by a person to enable him to make a crop, under the provisions of section 3286 of the Code of 1876, does not bind the crops raised by a tenant on the premises; and there is no authority to levy an attachment, issued against the maker’s crop, on the crops of such tenant. — Woolsey v. Jones, 84 Ala. 88.

This conclusion necessarily results in the affirmance of the judgment. Its application makes free from error the rulings of the court on the charges given and refused, to which exception was taken by the appellant.

Affirmed.