Perry v. Lewis , 49 Miss. 443 ( 1873 )

Simrall, J.,

delivered the opinion of the court:

The theory, as well as the text of the exemption laws, is, that the property therein mentioned shall “ be exempt from seizure and sale under execution and attachment.” Art. 280, 281, Code, 1887, p. 629 ; 1 sec., act. 1865, p. 137. Two modes are indicated in the act of 1865, to determine, prima facie^ the right of exemption, (4th and 5th sections). In case of doubt, the sheriff may summon three disinterested citizens of the county to resolve, it. Under the 5th section, the judgment debtor may designate the property specifically claimed as exempt, “ and no property so designated, shall be seized by the officer, otherwise than as provided for in the 4th section.” That is to say, such designation, raises a doubt as to the liability of the property; and before the sheriff shall proceed further, he must refer it, for resolution, to M three disinterested citizens.”

•The last clause of the 5th section subjects any officer who shall levy or seize property exempt, etc., to the action of trespass on the case.

The rule at common law was, that the sheriff must know at his peril, that the property which he seizes is liable to the writ. If he made an improper seizure, although actuated by good faith, and in mistake, the remedy of the party aggrieved was trespass for the unlawful taking and asportation of the goods.

In this case, the sheriff did not take the decision of three citizens as to the “ exemption ” of the property, nor did the debtor specifically designate the several articles as claimed to be exempt. The levy was made on the sheriff’s responsibility, and if unlawfully made he incurred liability either in trespass or case.

The greatest difficulty presented for solution is the sufficiency, in law, of the second plea to bar the action. That plea, in substance^ sets up that the plaintiff, before the institution of this suit, brought an action of debt upon his official bond., as . sheriff, alleging as a breach, “ a trespass upon the same property described, and the same, as in the plaintiff’s declaration alleged in this suit, the act complained of, as a breach of said bond being the same, and one with the act of trespass in this suit,” and that such proceedings were had that the plaintiff recovered judgment for $180.00 and costs^ Which judgment the defendant has satisfied by paying the $180.00 to the plaintiff.

It is contended by the counsel for the defendant in error that a recovery in the action of debt, upon the bond, is no bar to this action of trespass. The general principle is, that a judgment between the same parties, for the same cause of action, is conclusive between them. The first action must be competent to dispose of the case on its merits, and such disposition has been made. The first action is not a bar to the second if the judgment were rendered for faults in the declaration or pleadings. The true test is, whether the same cause of action was litigated and adjudicated in the former suit. The form of the action may be different, but the grievance and wrong complained of must be the same in both suits. Agnew v. McElroy, 10 S. & M., 552. The plaintiff may show that.the latter suit is for a different cause of action. If the defendant plead the former recovery, the plaintiff may take issue, or he may admit the recovery, and set up that it was for a different subject matter. 3 Chit. Pl., 929, 1159. The plea does, with sufficient clearness, aver that the breach of the bond assigned, was the same trespass as complained of in the plaintiff’s declaration in this suit.

But it is said that the plaintiff in the suit upon the bond could not have redress for the trespass. But can the party set up that objection? By voluntarily bringing that suit to obtain damages for the unlawful seizure of his goods, and prosecuting it to judgment, and then accepting the money, ought he not to be precluded from asserting, in this suit, that the action of debt was improvidently brought ? The defendant made no objection to the form of the action. The judgment was upon the merits, and then the money was accepted in its satisfaction. The matter in litigation complained of, as the injury, was the unlawful seizure of the exempt property — the same wrong and injury charged against the defendant in this suit. The sheriff might have objected that he was not liable, upon his bond, for the trespass. He, however, waived the point, and contested with his adversary on the merits. After the plaintiff has prosecuted his suit to a recovery, and received the money awarded as compensation, it is too late for him, in this suit, to object to the form of remedy originally adopted. We think the plea, if proved', is a bar to the action. In this view of the case, it is unnecessary to consider the other assignments of error.

Judgment reversed and cause remanded.