Stallings v. Gilbreath , 146 Ala. 483 ( 1906 )

ANDERSON, J.

In order that the rulings of the trial court may be revised upon an appeal upon a motion for a diseontinfiance, the motion, of at least the grounds thereof, and an exception to the ruling, should be presented by bill of exceptions. The bill of exceptions in the case at bar does not set out the motion or the grounds thereof, and we must presume that the action of the court was justified by the facts presented on the motion.— Mock v. Walker, 42 Ala. 668; Masterson v. Gibson, 56 Ala. 56; Jarman v. McMahan’s Adm’r, 37 Ala. 431.

It appears that the goods in question were seized while in the possession of the plaintiff by Will Stallings. While there is no plea of justification in the record, the defendants were permitted, without objection, to defend under an execution levied by said Stallings on the goods in question in favor of R. J. Riddle, receiver, against J. W. Gilbreath and W. S. Biddle, and sought to defeat the plaintiff’s recovery upon the idea that lie could not maintain the suit, as it was not his individual property, but belonged to a firm of which he was a member. The evidence also shows that after the levy was made the plaintiff, Gilbreath, lodged a claim of exemptions with Stallings to the property levied on. The plaintiff in execution contested this claim, which resulted favorablj' to the said Gilbreath, the plaintiff in this action. The judgment rendered on the contest, and from which is does not appear an appeal was taken, was conclusive on the plaintiffs to the execution as well as these defendants, who are endeavoring to justify themselves upon the theory that the property levied on was not the individual property of Gilbreath and was subject to the execution. This conclusion eliminates all questions upon the charges and evidence, questioning the plaintiff’s right to recover against Will Stallings, as the plaintiff was entitled to the general affirmative charge against, him; and this being true, any error that may have been committed by the trial court in respect to this issue was error without injury.

The only remaining issue is whether or not one or both of the other defendants were joint tort-feasors with the defendant Stallings, and we need consider only the assignments of error relating to this question, upon which there was a conflict in the evidence. There ivas no error in sustaining an objection to the statement of Hamrick, that “his entire connection with the case was that of justice of the peace.” Stallings testified that he (Hamrick) told him to levy on the goods, and if he was influenced thereby, Hamrick «was a joint tort-feasor, whether he was acting in the capacity of justice of the peace or not.

There was no error in permitting the plaintiff to produce the list of goods. It was made by Coleman in his presence, and he knew it to be correct.

Charges 1, 3, 5, and 7, requested by defendants, are embraced in the discussion of the title of the plaintiff, and there was no error in their refusal.

There was no error in giving charge 2, requested by the plaintiff.

Charge 4, requested by the plaintiff, should have been refused. Hamrick may have simply instructed Stallings as to his duty to sell, or may have instructed him absolutely to sell, yet he would not be a tort-feasor, unless Stallings was actuated by such instructions in making the sale, and which fact is ignored in the charge. There was a conflict in the evidence as to Hamrick and McCord’s connection with the conversion of the property, and the jury could infer from this charge that Ham-rick was liable for the instructions he gave the constable, though said instructions did not influence him in making the sale.

There was no error in giving charge 6, requested by the plaintiff. It covers the point attempted in charge 4, and contains the very feature that renders charge 4 bad because of the omission.

There was no evidence whatever that McCord and Hamrick had anything to do with the levy or seizure of the property, and they could not have been joint trespassers. There was "evidence that Hamrick advised Stallings that it was his opinion that he had the right as marshal to make the levy, bnt that was not sufficient to make him a trespasser. — Hammond v. Fisher, 2 Grant, Cas. (Pa.) 330. The trial court erred in refusing charges 1 and 2, requested by the defendants.

For the errors heretofore mentioned, the judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, ánd Denson, J.J., concur.