Albright v. Mills

Decision Date01 March 1889
Citation86 Ala. 324,5 So. 591
PartiesALBRIGHT ET AL. v. MILLS.
CourtAlabama Supreme Court

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by B. D. Mills on the official bond of Oswell Albright sheriff of Lee county, for wrongfully levying an attachment on plaintiff's property. Plaintiff's father, George S. Mills, gave a mortgage on his crop to be grown, to indemnify Renfro Bros. in certain advances made to enable him to raise said crop. Renfro Bros. sued out an attachment to enforce said lien, which, after reciting the mortgage directed the sheriff to levy on the crop raised by George S Mills, "or his tenants, on the premises cultivated by him or his tenants;" and against the protest of B. D Mills, who was a tenant of his father, the sheriff levied on his crop. Thereupon this action was instituted. The complaint was demurred to on the ground that it proceeded on the theory of a trespass, and that the sureties were not liable therefor, but only for a breach of the bond. The demurrer being sustained, an amended complaint was filed over the objection of defendants, conforming to the court's ruling. This amended complaint the defendants moved to strike from the record because it presented a new and different cause of action from the original complaint,-the original being for a trespass, and the amended complaint being for a breach of the bond,-which motion was overruled. The defense was the general issue and several special pleas justifying the levy under the writ. These pleas were held bad on demurrer, the court concluding that the attachment, on its face, was invalid as to plaintiff's property. The trial was had on the general issue, and several instructions were tendered by each party; those of the plaintiff being given, and those of the defendants being refused. The theory on which the court instructed was that the attachment was void on its face as to the tenants of the defendants, and the sheriff a trespasser for making the levy, and that it made no difference if the plaintiff used part of the advances secured by the mortgage in making the crop levied on, if he did not himself give or authorize the giving of a lien on his crop. The court also held that it was immaterial whether the amount of the rent to be paid by plaintiff was agreed or not, if he cultivated the land on an agreement that it was to be his crop, as in such case the law would imply a contract to pay a reasonable rent. The court refused to charge that the sureties were not liable for the wrongful act of the sheriff in levying the writ, the mistake in it being that of the clerk who issued it. There was a verdict and judgment for plaintiff, and defendants appeal, the errors assigned being the rulings of the court in refusing to strike the amended declaration from the files, in sustaining the demurrers to the pleas, and in giving and refusing the charges.

George P. Harrison, Jr., for appellants.

W. J. Samford, for appellee.

SOMERVILLE J.

The action is one brought by the appellee, Mills, against the sheriff of Lee county and his sureties, for a wrongful levy on the plaintiff's crops under a writ of attachment sued out against one George D. Mills; the purpose of the attachment being to enforce a lien created for advances to make crops under the provisions of section 3286 of the Code of 1876.

The statute expressly declares that every official bond shall be obligatory on the principal and sureties for any breach of condition, "as well by any wrongful act committed under color of his [the principal's] office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law." Code 1886, § 273, subd. 3; Code 1876, § 179. This statute was intended to meet the rule formerly announced in Simmons v. Hancock, 2 Ala. 728, that the sureties of a sheriff would not be responsible for any malfeasance on such officer's part unless the malfeasance included also a misfeasance. In McElhaney v. Gilleland, 30 Ala. 183, it was accordingly held under this statute, then embodied in section 130 of the Code of 1852, that the sureties on a constable's bond were liable for their principal's wrongful act, committed in taking or selling the property of the defendant, which was exempt from levy and sale at law, the tortious act itself being a trespass. So, in Kelly v. Moore, 51 Ala. 364, the sureties on the official bond of a justice of the peace were held liable for a wrongful arrest and imprisonment of the plaintiff, the arrest being without authority, but under color of office. It was ruled as far back as 1825, in this state, that the sheriff was liable for a trespass committed by his deputy under color of office. Prewitt v. Neal, Minor (Ala.) 386. Whatever may be the rule apart from the statute, there can be no doubt of the fact that, under its influence, a sheriff's sureties are ordinarily responsible for a trespass committed by him in his levying an execution or attachment issued against one person upon the goods of another, who is a stranger to the process, unless the statute authorize such levy; such an act being one...

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13 cases
  • Phillips v. Morrow
    • United States
    • Alabama Supreme Court
    • 6 November 1924
    ... ... v. Boozer, 139 Ala. 502, 36 So. 716; Spear v ... State, 120 Ala. 351, 25 So. 46; Williams v ... State, 88 Ala. 80, 7 So. 101; Albright v ... Mills, 86 Ala. 324, 5 So. 591; Johnson v ... State, 73 Ala. 23; Womack v. Bird, 63 Ala. 500; ... Murphy v. State, 55 Ala. 252; Young v ... ...
  • Pickett v. Richardson
    • United States
    • Alabama Supreme Court
    • 5 November 1931
    ...one committed under color of his office, which means under the pretended or arrogated authority of his office," in Albright v. Mills, 86 Ala. 324, 327, 5 So. 591, 592. decision in Burgin v. Raplee, 100 Ala. 433, 14 So. 205, contains the observation that if the officer knew before the sale t......
  • American Bonding Co. of Baltimore City v. New York & Mexican Whiting Co.
    • United States
    • Alabama Court of Appeals
    • 15 December 1914
    ...95 Ala. 312, 10 So. 845; Ritch v. Thornton, 65 Ala. 309; U.S.F. & G. Co. v. Union Trust Co., 142 Ala. 532, 38 So. 177; Albright v. Mills, 86 Ala. 326, 5 So. 591; Ex parte Martin, 180 Ala. 620, 61 So. These holdings necessarily result in the affirmance of the judgment appealed from. Affirmed. ...
  • Clarke v. Ohio River R. Co.
    • United States
    • West Virginia Supreme Court
    • 18 December 1894
    ...Id. 550; 28 Vt. 673; 23 Ga. 590; 31 X. W. Rep. 60; 68 Vt. 186; 43 Am. & Eng. R'd. Cas. 309; 78 Ga. 525; 39 Kan. 690; 87 Fed. Rep. 894; 86 Ala. 324; 11 S. W. Rep. 526; 76 la. 67; 110 X. Y. 646; 17 Atl. Rep. 884; Code, e. 130, s. 46; 20 X. E. Rep. 727: 16 W. Va. 257; 25 W. Va. 266; 3 Gm. & W.......
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