Lavretta v. Holcombe , 98 Ala. 503 ( 1893 )

HARALSON, J.

1. The plaintiff, Lavretta, — appellant here — sued out an attachment against Moraquez, returnable to the City Court of Mobile, placed it in the hands of the sheriff, Hoicombe — appellee here, — who levied it on personal property supposed to belong to the-defendant in attachment. The suit was prosecuted to judgment in said court, for the sum of $478.24 and costs; the property levied on was condemned to be sold for the satisfaction of the judgment, and a writ venditioni exponas issued and was placed in the hands of the defendant, as sheriff, who advertised it for sale, and on the day of the sale, and before it came off, and the property which had been levied on was about to be sold under that writ, one Gerald, as president of the “Cosmopolitano Club,” by bis affidavit, made claim to a part of said property as being the property of said club and not of the defendant in execution; and defendant, having reasonable doubt whether the property he had levied on, which was claimed by said club, belonged to the defendant in attachment, and was liable to levy and sale under said writ, notified the plaintiff of this claim and of his reasonable doubt as to the ownership of the property, • and required of him a bond of indemnity, before proceeding to sell that portion of it which was claimed by said club; and plaintiff refused to give a bond of indemnity, and after ten days from the time he required said bond — no bond having been given — defendant released that portion of it which was so claimed, and sold and accounted for the balance.

2. The main question in the case is, whether the sheriff, having levied the attachment on the property, could after-toarcls demand an indemnity, and if not given in ten days from the demand, release it.

Section 2963 of the Code provides, “When a doubt exists as to the title of the defendant to personal property which the sheriff is required to levy upon, he may demand indemnity from the plaintiff.” This statute does not say that the doubt referred to, to authorize a demand for indemnity, must exist before the ievy is made; and it would certainly be a narrow construction and one directly against the policy of the law, to so interpret it. It was to relieve him of the peril under which he proceeded in such cases, at common law, that the statute was passed. The rule was a harsh one which required him to proceed, as the agent of the plaintiff in making his money, and run all the risk of a mistake in so doing; and so, in the suggestions of a better and juster policy, this statute was passed. Often, attachments are necessarily hurriedly levied, without opportunity to investigate the ownership of property on which levies are required to be made, and when claims to it are not generally ascertained, until after a levy; and to hold that a sheriff, in this race of diligence he runs for plaintiff, because he did not know of the danger ahead of him, before he started, can not stop, but must go right ahead, when he finds it out, puts him in no better position for protection with, than without the statute. It is reasonable and fair to hold, that he may demand indemnity, under this statute after, as well as before the levy, and, if not given, he is not bound to sell. If a sacrifice is to be made at this point, better the plaintiff than the sheriff.—Screws v. Watson, 48 Ala. 628. In this case, the sheriff having an attachment against the estate of McDon-aid, levied on tbe goods of Watson, and afterwards, wben judgment bad been obtained against McDonald in tbe attachment suit, execution issued and was levied on tbe same property, on wbicb be bad levied tbe attachment, but be refused to sell unless indemnified.- And tbe obligors on that bond were held liable on it, a result that could not have been reached, if it bad not been lawful to demand indemnity, after tbe levy of an attachment.

3. But this case finds relief under another section of tbe Code — 2905—wbicb is in a different title, article and chapter from tbe one to wbicb we have just been referring. Tbe article under wbicb this section — 2905—comes, relates to “Levy, Sale and Return; Venditioni exponas and Conveyance.” Its provisions refer to writs of venditioni exponas, as well as to writs of execution. These provisions are, “When a reasonable doubt exists whether the property levied on, (it does not say under execution), belongs to tbe defendant, or whether tbe property alleged to be bis, is subject to levy and sale, tbe sheriff may require of tbe plaintiff, bis agent or attorney, a bond of indemnity; and, if it is not given, within ten days thereafter, be may restore tbe property to tbe defendant, if levied on, or decline to levy, if one has not been made.”

There is but little difference in fact, and none in legal effect, in an execution and a venditioni exponas. Tbe one is an order to seize any property tbe sheriff may find wbicb belongs to tbe defendant and sell it, to satisfy the judgment on wbicb it issued; tbe other is an order to sell particular property already seized and in tbe bands of tbe officer, to satisfy tbe judgment on wbicb it issued. They are tbe means of accomplishing tbe same end — tbe satisfaction of the judgment. The officer levying and selling is exposed to tbe same hazards, against wbicb it is tbe policy of tbe law to shield him, in proceeding to accomplish this result, so beneficial to tbe plaintiff, whether under tbe one or tbe other. It would not hurt him any more, to be ruined in making tbe money for a plaintiff under a venditioni exponas, than under an execution, and tbe legislature knew that, wben it made said section of the Code broad enough to cover tbe sheriff, whether be acts in making a levy under one or tbe other writ.

4. Wben tbe plaintiff recovered bis judgment, be might have issued execution on it, against tbe property, generally, of the defendant, and coming to tbe bands of tbe sheriff, be might have levied it on tbe property already levied on, and in bis bands under tbe attachment, and thereby have en-forced bis lien as effectually as by a venditioni exponas. In tbat case, wbo denies, if doubt bad risen as to tbe defendant’s ownership of tbe property, be would bave bad tbe right to demand indemnity ? And what reason can be assigned, why be should not bave tbe same right, when proceeding under venditioni exponas ?

Applying these principles to the demurrers to tbe 8th and 9th pleas, we must bold they were rightly overruled.

5. In the course of tbe trial, an effort was made, by tbe defendant as is stated, to establish tbat tbe Cosmopolitano Club, which claimed tbe part of tbe property levied on, was a corporation, and for tbat purpose, offered in evidence tbe incorporation book, kept in tbe office of tbe judge of probate, and the proceedings touching tbe organization of said Club, as found in said book, but they were ruled out, on tbe motion of tbe plaintiff, “because they did not show a corporate organization as required by law.” It could bave served no indispensable purpose, to show tbat tbe Club was organized, for an unchartered association of individuals, styling themselves tbe “Cosmopolitano Social and Literary Club,” could bave owned tbe property levied on, aijd made claim to it, as well as if they bad been incorporated. Having objected to defendant proving tbe corporate existence of said Club, tbe plaintiff could not well object to proof of a voluntary association of individuals under that name, ahd tbe objection to tbe question propounded to tbe witness, L. B. Gould. — “ ‘Do you know whether or not several people, or a number of people, acted together, and claimed to be a Club under tbe name of tbe ‘El Cosmopolitano Social and Literary Club,’ ” was properly allowed, tbe other evidence tending to show tbat this Club made claim to a part of tbe property levied on, which tbe sheriff demanded indemnity to sell. Eor the same reasons, tbe question propounded to and answered by tbe same witness, which constitutes tbe basis for tbe 5th assignment of error, was allowable.

6. Tbe statements of said witness, tbat be bad been elected as president of tbe Club, as shown by its minutes and tbat be was, in May, 1889, and prior thereto, acting as tbe president of an organization or a society of gentlemen, designating themselves, tbe “El Cosmopolitano Social and Literary Club,” were very proper to be answered. They tended to show a voluntary organization under that name, which claimed this property, and tbat tbe claim was not simulated but real. The question propounded was, “if be claimed to be an officer of tbat Club ?” Tbe answer was, “tbat be did not claim to be an officer thereof, but tbat be bad. been elected as tbe president of tbe Club, as shown by tbe minutes.” Whether tbe minutes of tbe Club showed be was elected or not, was, immaterial, if be acted, and tbe statement of tbe witness was about a collateral fact, which was also a collective fact, to which be was competent to testify, as much so as when a witness testifies be executed a deed or brought a suit.

7. We have held that a defective certificate of acknowledgment of a conveyance may, from necessity, operate .as tbe formal attestation of a witness, to prevent tbe instrument from being inoperative as a conveyance. Carlisle v. Carlisle, 78 Ala. 544; Rogers v. Adams, 66 Ala. 600; but, that is in a case, where the instrument, to have any legal effect, must be acknowledged or attested, and to save a conveyance which tbe parties intended to make, tbe magistrate who takes a defective acknowledgment, is allowed to be converted into a subscribing witness to tbe conveyance.

Tbe affidavit, tbe proof of tbe execution of which, in tbe form it was allowed, — made tbe basis of an exception, — was a private paper, one which tbe law does not require to be made. It was a mere notice to tbe sheriff of tbe claim of tbe El Cosmopolitano Club to a part of tbe property be bad levied on, forbidding him to sell it. We are not informed it was made as tbe basis of a replevy; and on tbe presentation of this claim, as tbe bill of exceptions states, a release of tbe levy of tbe property described in tbe affidavit was demanded of tbe sheriff in behalf of said Club. To make tbe claim appear to be tona fide, no doubt, it was sworn to. Tbe Notary Public before whom it was sworn, is not, properly speaking, a subscribing witness to it, and it is not necessary, now, so to decide. But, if tbe notary were tbe attesting witness, tbe paper is not tbe foundation of tbe right and title of tbe Club to tbe property, tbe sale of which, by the paper, it forbade; but it is “merely collateral, or inter alios, under or from whom neither party seeks to claim any right or interest.” Askew v. Steiner, 76 Ala. 221. And so, tbe witness, Gould, was properly allowed to prove bis own signature and that of Jno. Marquez, tbe other maker of tbe written claim. This view of tbe case disposes of tbe remaining assignments of error.

We find no error in tbe record, and tbe judgment of tbe City Court is affirmed.

Affirmed.