Waldrop v. Almand ( 1894 )

Almand had an execution against Mrs. Waldrop, and placed it in the hands of Boyd, a constable, with direction to levy on a mare, colt and buggy on Mrs. Waldrop’s place. Boyd did so, being informed at the time of levy that the property did not belong to her but to plaintiffs, her children, who would hold him and Almand to account for the trespass. He made the levy, and plaintiff's interposed claims and gave forthcoming and damage bonds. Before the ’ trial of the claim cases, Almand caused the levies to be dismissed. Plaintiffs brought their actions for damages against Almand and Boyd; both cases were tried together, and verdicts were rendered for defendants. Plaintiff's moved for a new trial, and the motions were overruled. It appeared, among other things, that plaintiffs, Mrs. Waldrop and her daughter all lived together on her land which plaintiffs had rented from her for the year in which the levy was made. One of plaintiffs was then a minor; the other had attained his majority. The court charged the jury, among other things, that the constable had the right, without incurring any damages, to levy on property in possession of the defendant in execution; and that if, under the facts, the constable was authorized to believe that whatever was on the place was in her possession, he would have the right to levy upon it without liability in damages.

J. N. Glenn and A. C. McCalla, for plaintiffs. A. M. Helms and G. W. Gleaton, for defendants.