Adamson v. Noble

• Decision Date: 30 June 1903
• Citation: 35 So. 139,137 Ala. 668
• Parties: ADAMSON ET AL. v. NOBLE.
• Court: Alabama Supreme Court

35 So. 139

137 Ala. 668

ADAMSON ET AL. v. NOBLE.

Supreme Court of Alabama

June 30, 1903

Appeal from Circuit Court, Marshall County; A. H. Alston, Judge.

Suit by Sarah E. Noble against G. Z. Adamson, sheriff, and the sureties on his official bond, to recover for an alleged wrongful levy. From a judgment in favor of plaintiff, the defendants appeal. Reversed.

The defendants pleaded the general issue, and, among others, the following special plea, which was numbered 4: "Comes the defendants, and for answer to the complaint they say that the property sued for was seized by the sheriff under and by virtue of an execution issued in favor of A. G. Henry v Thomas Y. Nobles, issued on July 18, 1901, out of the circuit court of Marshall county for $102.42 besides $14.40 cost of suit; that defendant Adamson was indemnified by Sam Henry to make said levy; that on the 12th day of August, 1901, the said Sam Henry did purchase from one Thomas M. Barclift a mortgage on the mare sued for, executed by said Thomas Y Nobles to said Barclift on the 7th day of December, 1900, for the purpose of securing a horse from said Barclift; that plaintiff knew of her husband's intention to give said mortgage, and authorized him to do so; that Barclift did not know that said mare belonged to plaintiff,--and these facts defendants plead to the further prosecution of this suit, and they further aver that at the time of the issuance of said execution and of said levy the said Sam Henry was the owner of said judgment against Thomas Y. Nobles." A demurrer was interposed to the fourth plea, which was overruled. Thereupon the trial was had upon issue joined upon all the pleas interposed by the defendants. On the trial of the case the testimony for the plaintiff tended to show that the horse which was levied upon by the defendants was the plaintiff's horse; that the execution under which the levy was made was issued upon a judgment which was recovered against the plaintiff's husband. There was evidence introduced for the defendants tending to show that the horse which was levied upon was the property of the plaintiff's husband, who was the defendant in the judgment upon which the execution was issued. The defendants offered to introduce in evidence the execution which was levied upon the horse in question, together with the return on said execution. The plaintiff objected to the introduction in evidence of this writ of execution, upon the...