Burgin v. Raplee , 100 Ala. 433 ( 1893 )

HABALSON, J.

This suit is against a constable, J. C. Burgin, and his.sureties on his official bond, for having wrongfully levied upon and taken into his possession the personal property of the plaintiff, described in the complaint, “and permanently deprived her of the same.” In neither count of the complaint, is there any averment or description of any process under which said constable levied upon and seized the property of the plaintiff. The defendant demurred to the complaint, on account of its prolixity, and because it failed to state that the constable “did not have a writ against plaintiffbut it does not appear that the court passed on the demurrer. The plaintiff, in seeming confession of the demurrer, amended his complaint, by adding at the end of each count, an averment, “that the justice of the peace in trying the cause” (attachment against plaintiff and her husband), “never issued any execution, or venditioni exponas, against the property of plaintiff, and said constable was notified before the sale, that the property levied upon was the property of the plaintiff, and not the property of said William Eaplee, (her husband and co-defendant in attachment) but the said constable sold the said property against the objection of the plaintiff.”

The defendant filed four pleas to the complaint as amended, to each of which the plaintiff demurred. The first plea was intended as one of justification under legal process. A demurrer was interposed by the plaintiff to this plea, but it does not appear to have been passed on, and will be considered as waived.

The second plea was one of res adjudicata, but it was lacking in the elements to make the judgment in the case therein referred to, conclusive in this case, in which the parties are not the same, and the demurrer thereto was properly sustained.— Galbreth v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 368; Lehman v. Clark, 85 Ala. 113; 3 Brick. Dig. 580, § 75.

Demurrers to pleas 2-J- and 3 were properly sustained. They each ignore the allegation of the complaint, that “said constable was notified before the sale, that the property levied upon was the property of the plaintiff, and not the property of Wm. Eaplee, but the said constable sold the said property against the objection of the plaintiff.”

The only pleas upon which issue could have been joined, then, were the general issue and special plea No. 1. The case was tried by the court, without the intervention of a jury, and a judgment was rendered in favor of plaintiff, for $400.

It appears from defendant’s first and third pleas, and may therefore be taken as confessed by them, that the attachments were sued out before Geo. L. Boot, a justice of the peace, one by Hurt & Co. vs. Wm. Raplee and Tressa Raplee, his wife, the plaintiff in this suit, and the other by The New Orleans Land & Building Co. vs. A. Benson & Wm. Eaplee— under both of which said writs, the defendant, Burgin, as constable, levied upon the property described in the plaintiff’s complaint; that under a plea of coverture by the plaintiff, she was discharged, and in the first named case, judgment was rendered against the defendant, Wm. Baplee, alone, and in the other case, judgment was rendered against said A. Benson and Wm. Baplee; that said justice issued a writ of venditioni exponas, on each of said judgments, ordering and directing said constable to sell the particular property which had been levied on by him under said writs of attachment, and that the same was sold under the mandate of said writs.

It is certainly a correct proposition, that an officer with a writ of execution or venditioni exponas against one person,, has no right to sell the property of another, a stranger to the proceedings. But, in this case, if said constable, acting under the mandate of said writs of venditioni exponas, which, so far as appears, were regular, and issued by competent authority—proceeded and sold said property so levied upon under said writs of attachment, as the property of Wm. Baplee, or of A. Benson and Wm. Baplee, and he was not informed by the plaintiff, that the property was hers, and he was ignorant of that fact, then, under the complaint, he is not liable. But, if he knew that the property was the plaintiff’s,- and not that of defendants in attachment, against whom judgments were rendered, and he was so informed by the plaintiff before the sale, and sold it against her objection, as is averred in the complaint, he and his sureties are liable.-—Albright v. Mills, 86 Ala. 327; Clark v. Lamb, 76 Ala. 406; Martin v. Hall, 70 Ala. 421; Screws v. Watson, 48 Ala. 628; Code, § 2776.

It sufficiently appears from the evidence, that the property sold, was the property of the plaintiff, but it nowhere appears in the evidence that the constable was notified before the sale, that the property was plaintiff’s and not the property of said Wm. Baplee, and that he sold it contrary to her objections, as is averred.

On this state of proof, the plaintiff would not be entitled to a verdict; but, the bill of exceptions fails to state that it contains all the evidence introduced on the trial, and we must presume, as we have so often held, that there was evidence introduced sufficient to support the finding- of the court.

Affirmed.