Cunningham v. Baker

• Decision Date: 09 August 1894
• Citation: 104 Ala. 160,16 So. 68
• Parties: CUNNINGHAM ET AL. v. BAKER ET AL.
• Court: Alabama Supreme Court

16 So. 68

104 Ala. 160

CUNNINGHAM ET AL. v. BAKER ET AL.

Supreme Court of Alabama

August 9, 1894

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Assumpsit by Cunningham & Sons against Baker, Peterson & Co. and others. A sheriff's garnishment served upon A. Gerald was dissolved, and the case dismissed, and plaintiffs appeal. Affirmed.

As ancillary to this suit, a writ of attachment was sued out and was executed by the service of the sheriff's garnishment upon A. Gerald, the chief of police of the city of Montgomery, who had previously arrested the defendants Frank Baker and James Peterson, who had been engaged in business in the city of New Orleans, under the firm name of Baker, Peterson & Co. At the term of the circuit court of Montgomery county to which the attachment was returnable, the defendants moved to have an order issued to the plaintiffs Cunningham & Sons, requiring them to show cause, if any they had, why said writ of attachment and its levy by sheriff's garnishment should not be vacated, annulled discharged, and quashed. This motion sets up, in avoidance of the attachment by levy of the garnishment and the proceedings thereon, the facts that the defendants were illegally arrested, and their property was taken from them by persons with unlawful force,-by a trespass,-and that, therefore, the said property was not liable to said attachment, and the levy was void; and this contention is based upon the allegations of fact contained in the said motion, which is substantially as follows: The defendants, Frank Baker and James Peterson came to the city of Montgomery by railroad, each of them having upon his person certain money, clothing, and other personal property, and railroad checks for baggage. Before the arrival of the defendants, the chief of police of Montgomery had received a telegram from the chief of police of New Orlans, La., to the following effect: "See conductor of Louisville & Nashville train to arrive this evening, and keep track of Baker and Peterson, swindling commission merchants." When defendants arrived, they were arrested on the train, and taken from the train to the police station, where each of them was searched, the money and effects each had upon his person were taken therefrom, the hand baggage of each was taken from his person, and the checks for his baggage taken from his pockets, the said baggage stopped and brought to police headquarters, all being taken possession of by A. S. Gerald, chief of police. At the time of said search, there was no warrant for their arrest, no capias or other process charging them with any criminal offense against the city of Montgomery, the state of Alabama, or any other state, or the United States, in the hands of the arresting officers or of the chief of police, nor was there any requisition upon nor warrant by the governor of Alabama on demand of any other state, nor did said authorities ever get any process of any kind during the time of their detention in the city of Montgomery. After said arrest and search, the attachment in this case was sued out, and executed by the service of a sheriff's writ of garnishment upon Gerald, chief of police. The plaintiffs demurred to this motion, on the grounds that there are no facts averred in said motion which will authorize to justify the dissolution of said attachment; and that it is not averred in said motion that the plaintiffs authorized or connived at the arrest of defendants, or that they participated in, or had any connection with, said arrest. This demurrer was overruled, and thereupon the plaintiffs filed their answer to the motion of the defendants, alleging, as a cause that led up to the arrest of the defendants, substantially the following facts: A short time prior to the issuance of the attachment in this cause, the defendants therein went to the city of New Orleans, La., as strangers, without any visible means, and immediately began to advertise themselves very extensively to the public in places distant from the said city as dealers in country produce, offering, in some instances, to receive and sell on commission, and, in others, to buy directly from the shippers, and offering extra prices. In this manner they obtained large quantities of such goods from appellants and others, in various portions of Alabama, Florida, Mississippi Louisiana, Tennessee, and Texas, without any intention on their part of paying or accounting to the shippers thereof for the same, and nearly all of which goods they sold at any price they could get, appropriating the proceeds thereof to their own use, and paid the shippers nothing. After having thus obtained and disposed of said goods, and delayed the payment therefor as long as possible, they suddenly disappeared from said city of New Orleans, under very suspicious circumstances, and boarded a train on the Louisville & Nashville Railroad, at a small station a few miles this side of New Orleans, en route to Montgomery, Ala. On said train, at the same time, was a passenger who, having heard of the conduct of said defendants while in New Orleans, and observing their suspicious conduct at the time of boarding said train, wired the chief of police of New Orleans of the same. The chief of police, on obtaining information in reference to the matter, began communication by wire with the chief of police of Montgomery, and sent the telegram copied above, which led to the arrest of defendants at the latter place, where they had separated, having taken trains to different places. Shortly thereafter, they were delivered to the officers of the law from New Orleans, who returned to that city with them, where they were afterwards indicted for frauds growing out of said business, after which they were released on bond, and then left for parts unknown. While said defendants were under said arrest in Montgomery, they were taken to the police headquarters, and searched by certain police officers, and a portion of the property in question taken from their persons, and a portion was taken out of a trunk belonging to them, received by said officers from the railroad company, and all of said property was delivered by said officers to the chief of police, Gerald; and, while the same was so in his possession, the appellants, without knowledge or information as to the manner of said arrest, or in any way aiding, procuring, or directing the same, sued out attachments, and had the same executed by service of sheriff's garnishment on said Chief Gerald, and due notice given the defendants thereof. It was also averred in said answer "that the police officers, in making said arrests, acted in good faith, honestly believing that the said Baker and Peterson had violated the laws of the state of Louisiana, as aforesaid, and were fleeing from said state to avoid arrest; that the chief of police of Montgomery was personally acquainted with the chief or superintendent of police of New Orleans, and knew him to be reliable; and that said arrests were made, and said property obtained from them, for the purpose of preventing the escape of said Baker and Peterson, and honestly believing that the said property might be useful as evidence against them, the said Baker and Peterson, upon a trial of the charges against them growing out of their said fraudulent dealings." The defendants demurred to this answer of the plaintiffs, on the grounds (1) that it is shown in said answer that, at the time of the arrest of the defendants by the police authorities of the city of Montgomery, they were guilty of no offense justifying their arrest under the laws of the state of Alabama; (2) that it is shown by said answer that, if any violation of law was committed by the defendants, it was committed in a foreign state, and that no requisition had been made upon, and no warrant of arrest by, the governor of this state authorizing their arrest; (3) that the said answer undertakes to set up, in justification of the arrest of defendants in this state without process, the conduct of the defendants in a foreign state; (4) that the answer shows that the levy of attachment by service of a sheriff's garnishment was unlawful and illegal; and (5) that the answer is sufficient in law. These demurrers were sustained, and, the plaintiffs declining to plead further, the motion was granted, "and the attachment executed by service of sheriff's garnishment on A. Gerald, as chief of police, dissolved and quashed, and said cause dismissed." The plaintiffs appeal, and assign as error the overruling of their demurrer to the defendants' motion, and the sustaining of the defendants' demurrer to their answer, and the judgment rendered.

Farnham & Crum, for appellants.

Lomax & Ligon, for appellees.

BRICKELL C.J.

The levy of the attachment was made only...