Carter v. Palmer

• Decision Date: 16 April 1890
• Citation: 90 Ala. 138,7 So. 531
• Parties: CARTER ET AL. v. PALMER ET AL.
• Court: Alabama Supreme Court

7 So. 531

90 Ala. 138

CARTER ET AL. v. PALMER ET AL.

Supreme Court of Alabama

April 16, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

The appellants, Carter Bros. & Co., sued out an attachment against the defendant A. T. Palmer, before a justice of the peace, for an amount greater than the justice's jurisdiction, but not in excess of the amount fixed for a constable's bond. This attachment was made returnable to the circuit court. There being no regular constable, the justice appointed a special constable to make the levy of the attachment. Under the writ the special constable took the property in custody; and, while he had the same in his possession as special constable, the defendant sold the goods so levied on to Ellis, Thomas & Hill, and the said purchasers induced the special constable to turn the goods over to them. Upon finding this out, the plaintiffs had the clerk of the circuit court to issue a writ of attachment against the defendant Palmer under section 2955 of the Code; and the same was levied by the sheriff on the goods so sold to Ellis Thomas & Hill, before they were removed from the state. Thereupon the said Ellis, Thomas & Hill made affidavit, gave bond, and instituted a claim to the said goods. Upon the trial of the claim suit, the court, at the request of the claimants in writing, gave the general affirmative charge in favor of the claimants. To the giving of this charge the plaintiff duly excepted, and also excepted to the refusal of the court to give the general affirmative charge in their favor, and these rulings of the court and here assigned as error.

Lane & White, for appellants.

Smith & Lowe and W. T. L. Cofer, for appellees.

MCCLELLAN J.

We are not inclined to disturb the authority of the case of Peebles v. Weir, 60 Ala. 416, as to the competency of a special constable to levy an attachment issued by a justice of the peace, and returnable to the circuit court for an amount greater than the justice's jurisdiction and not in excess of the bond required to be given by constables. For many years, at least as far back as 1838, justices of the peace have had authority to issue attachments for sums exceeding their final jurisdiction, and make them returnable into the circuit court. But prior to the act of February 5, 1856, (Acts 1855-56, p. 18,) there was no law authorizing a constable to levy such an attachment, as was held in Martin v. Dollar, ...