Burgin v. Raplee

• Decision Date: 01 December 1893
• Citation: 100 Ala. 433,14 So. 205
• Parties: BURGIN ET AL. v. RAPLEE.
• Court: Alabama Supreme Court

14 So. 205

100 Ala. 433

BURGIN ET AL. v. RAPLEE.

Supreme Court of Alabama

December 1, 1893

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Tressa Raplee against J. C. Burgin and others for damages for the wrongful levy upon and sale of certain property alleged to have been the property of plaintiff. There was judgment for plaintiff, and defendants appeal. Affirmed.

The facts of the case are sufficiently stated in the opinion. After the amendment of the plaintiff's complaint, the defendants pleaded thereto the general issue and four special pleas. It is not deemed necessary to set out the first plea. The second plea was as follows: "Defendants further saith that in the case of the trial of rights of property in the city court of Birmingham, Ala., of J. Shahan & Son v. A Benson & Co., a partnership composed of A. Benson and Wm Raplee, husband of the plaintiff in this case, in which Tressa Raplee (who is plaintiff in this case) was claimant on the 20th of November, 1889, the following described property, the same being a part of the same property for which the plaintiff is suing for damages for the wrongful sale of in this case, to wit, [describing the property,] was by the judgment of that court on that issue decided to be the property of William Raplee, and not the property of plaintiff; and that at that date the said H. H. Hurt & Co. and Orleans Land and Building Company held their respective claims as a subsisting debt on which they sued out their said attachment before the said George L. Root on the 10th of January, 1890, as stated in said first plea; and defendants aver that no sale or transfer of said property has been made since said trial of the rights of property that would be good and valid as against said claims of H. H. Hurt & Co. and Orleans Land and Building Company." The other two pleas were as follows: "(2 1/2) Defendants further saith that plaintiff was present at the sale of the property described in complaint by defendant Joseph C. Burgin, and heard her husband, Wm. Raplee, then lay claim to the same, without opening her mouth, or denying his title, and that she is estopped from claiming same in this suit. (3) Defendants further saith that the alleged wrongful levy and sale complained of by the plaintiff in this action was not so, and plaintiff cannot maintain this action, because the property which plaintiff itemizes in her complaint, and claims damages for the wrongful levy upon and sale of, was attached under the said writ hereinbefore described in the first plea as the property of plaintiff and Wm. Raplee, her husband, in the said case of H. H. Hurt & Co., and as the property of the said Wm. Raplee and A. Benson in the same case of the Orleans Land and Building Company against them, as fully set out in the first plea aforesaid; and that, while judgment was only rendered against Wm. Raplee on a plea of coverture herein in said case of H. H. Hurt & Co., but against both the defendants, Wm. Raplee and A. Benson, in the other case of the Orleans Land and Building Company, yet the writs of venditioni exponas issued on said judgment as hereinbefore described in the first plea ordered and directed said constable, J. C. Burgin, to sell the property [itemizing the same- which he had attached under said writs; and if any or all of the said property was the property of the plaintiff herein he was by the mandate of said writ compelled to sell the same in the absence of a claim suit by plaintiff." To the plea 2 1/2 the plaintiff demurred on the ground that it did not set out facts showing that the plaintiff was estopped to claim the property described in the complaint. To the third plea the plaintiff demurred on the ground that it does not aver facts showing that the plaintiff was estopped to prosecute this suit, and "because it failed to set out the writ under which the sale was made with sufficient certainty for the court to determine whether or not the sale made thereunder was a lawful writ authorizing the said constable to make the sale thereunder." The court sustained the demurrers to pleas 2 1/2 and 3, and, upon issue being joined on the remaining pleas, judgment was rendered for the plaintiff.

James Trotter, for appellants.

Lane &amp White, for appellee.

HARALSON J.

This suit is against a constable, J. C. Burgin, and his sureties on his official bond, for having wrongfully levied upon and taken into his possession the personal property of the plaintiff, described in...