Aderholt v. Smith

• Court: Alabama Supreme Court
• Writing for the Court: CLOPTON, J.
• Citation: Aderholt v. Smith, 83 Ala. 486, 3 So. 794 (Ala. 1888)
• Decision Date: 24 February 1888
• Parties: ADERHOLT ET AL. v. SMITH.

3 So. 794

83 Ala. 486

ADERHOLT ET AL. v. SMITH.

Supreme Court of Alabama

February 24, 1888

Appeal from circuit court, St. Clair county; LEROY F. BOX, Judge.

This is a special action on the case brought by M. M. Smith against the several persons composing the firm of D. A. Aderholt &amp Co. Upon the trial of the case the defendants demurred to the complaint, but the court overruled the demurrer, and the defendants excepted, and now assign the overruling of the said demurrer as error.

Samuel F. Rice, for appellant.

J W. Inzer, for appellee.

CLOPTON J.

The plaintiff, having obtained a judgment against P. Holmes caused W. T. Helton to be summoned as garnishee, who appeared and answered that he had some cotton in his possession belonging to the judgment debtor, but suggested that it was claimed by the defendants in the present suit. Thereupon notice was issued to them under the statute, in response to which they appeared and propounded their claim. On the trial, judgment was rendered against the claimants, and condemning the cotton to the satisfaction of the plaintiff's judgment. During the pendency of the claim suit, the defendants obtained from the garnishee, who is insolvent, possession of the cotton, and converted it to their own use. The sole question is whether the plaintiff on these facts can maintain a special action on the case against the defendants. In Kelly v. McCaw, 29 Ala. 227, it was held that an action on the case does not lie against a party who fraudulently and wrongfully induced the sheriff to deliver possession of personal property, on which he had levied an execution in favor of plaintiff against a third person, which such party had removed beyond the reach of the court, though the defendant in execution was insolvent. The decision rests on the principle that by the seizure of the chattels the sheriff acquired a special property, and became...