West v. Hayes , 120 Ala. 92 ( 1897 )

BRICKELL, C. J.

Appellant’s intestate, M. A. West, sued to recover damages for a trespass alleged to have been committed by appellee under color of his office as sheriff of Chilton county. The principal question presented -for consideration is whether, under a writ for the seizure and delivery of personal property, regular on its face and issued by competent authority to carry into effect a judgment for the recovery of said property, the sheriff is justified in séizing said property wherever and in whosesoever possession the same may be found, notwithstanding the person from whose possession it is taken may have been rightfully in possession thereof. The writ, which is set out in the special pleas justifying the seizure under legal process,, commanded the sheriff “to seize and deliver to H. C. Reynolds [the property described therein], which said property the said H. C. Reynolds recovered of G. G. West, J. B. Hill and Thos. Prestridge by the judgment of the circuit court of Chilton county, Alabama, on the 14th day of May, 1890.” The pleas averred that the property described in the writ was situated on the land described in the complaint, but that it was not the property of the plaintiff, and that in obedience to the mandare of the writ the sheriff entered upon said land and seized the property and delivered it to H. C. Reynolds, using no more force than was necessary. But it does not appear from the plea that the property described in the writ was the same as that described in the complaint, nor are any facts averred tending to show that plaintiff’s intestate was a party to the suit in which was rendered the judgment upon which said writ was issued, or had any privity with the defendants in said suit, or that his possession was the possession of said defendants, or that he came into possession while said suit was pending, or that he was not rightfully in possession thereof.

A plea of justification under legal process must set forth matter which, if proved, would constitute a full defense to the action. If the plaintiff in the action is a stranger to the writ, the plea should aver facts to show that the property taken was the property of the defendant in the process and was subject to seizure thereunder. Daniel v. Hardwick, 88 Ala. 559. It is clear that the pleas interposed in this case were defective for the reasons specified in the demurrer, unless, as Contended'by appellee, the writ under which he seeks to justify was such as to authorize him to seize the property wherever it might be found, even though in the rightful possession of a stranger to the writ’. A sheriff is undoubtedly protected as to all acts done by him in obedience to the mandate of a legal process, regular on its face and issued by competent authority. But ordinarily a writ issued to carry into effect the judgment of a court runs only against the parties named therein as defendants, and is not regular On its face so far as concerns strangers not named therein, and does not authorize, and will not justify, its execution against strangers thereto.—Albright v. Mills, 86 Ala. 328. The writ set out in the plea was, on its face, but a species of execution, authorized by the statute to carry into effect the. judgment of the court in favor of the plaintiff in an action to recover specific personal property, wherein H. C. Reynolds was plaintiff and G. G. West, J. B. Hill and Thomas Prestridge were defendants, and was in the form prescribed by statute. Code of 1896, § § 1483, 1880; Code of 1886, §§ 2723, 2882. The judgment in such cases is that the plaintiff have and recover of the defendant the property sued for, and the wp.t for the seizure and delivery to the plaintiff of the property recovered should follow and be construed according to the judgment. The court from which the writ issues has no jurisdiction to order the seizure of the property while in the rightful possession of one who ivas not a/party to the suit, between whom and the defendant therein there is no privity, and whose possession began previously to the commencement of the suit and continued during its pendency ; and of this want of jurisdiction the sheriff in whose hands the writ is placed for execution is charged with knowledge. Albright v. Mills, 86 Ala. 328, siopra. Against the seizure of a property in tlie possession of such person the sheriff is not, therefore, protected by such process. The writ corresponds ko the writ of habere facias possessionem, issued to carry into effect the judgment of the court in favor of the plaintiff in an action of ejectment, which directs the sheriff to deliver to the plaintiff the possession of the lands and tenements described therein. Such writ, like the writ for the seizure and delivery of personal property, does not, in express words, name the person from whom the possession is to be taken, but it is well settled that in the execution of the writ the officer is not authorized to eject from the lands or tenements described.one who was not a party to the suit, who had-no privity with the defendant therein, and whose possession was adverse to the defendant and anterior to the commencement of the suit. If such person should be ejected, the court from which the writ issued would, upon proper application, promptly order a writ of restitution to restore to him the possession of the land.—Howard v. Kennedy, 4 Ala. 592; Smith v. Gayle, 58 Ala. 600. The same principles must apply with respect to a writ for the seizure and delivery of personal property issued on a judgment rendered in an action of detinue. It appears from the plea that plaintiff’s intestate was not a party to the writ under which the defendants sought to justify'the seizure of the property, an averment of facts to show that the property was, notwithstanding, subject to seizure wdiile in his possession was essential to the sufficiency of 'the plea, and as these facts were not averred the demurfer should ha,ve been sustained.

The pleas, as answer to the first count of the complaint, which Alleged that the property seized was a fixture attached to the land, should also have averred facts to show that the circumstances under which it was attached to the land were such that in law, its character as personal property was not changed. Under ak writ for the seizure of personal property real property caP-iiot be seized. But this objection was not raised by the\ demurrer, and cannot, therefore, be considered court as ground for reversal.

Reversed and remanded.