Devers v. Harris

Citation238 Ala. 610,193 So. 110
Decision Date11 January 1940
Docket Number6 Div. 578.
PartiesDEVERS v. HARRIS.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action in trover and trespass by Mark L. Harris, doing business as Reading Clothing Retail Company, against John Devers, with attachment and garnishment in aid of suit. Judgment for plaintiff and defendant appeals.

Affirmed.

Morel Montgomery, of Birmingham, for appellant.

Lange Simpson, Brantley & Robinson and Jas. O. Haley, all of Birmingham, for appellee.

GARDNER Justice.

Mark L Harris sued John Devers in trover and trespass, seeking to recover for money alleged to have been taken from his place of business in a robbery in Pennsylvania. A non-resident attachment was issued against the chief of detectives of Birmingham, attaching $1,130 in his hands, and garnishment was also issued. Devers entered an unqualified appearance in the case, and the details of attachment are unnecessary further to relate.

Devers claims the money as his, and that it was taken from him by virtue of an unlawful arrest, and was retained by the chief of detectives without authority of law.

Upon oral proof before the trial court without a jury, the conclusion was that the money was subject to the garnishment and attachment proceedings, and defendant Devers appeals.

The facts briefly summarized are as follows: Harris in October 1938 operated a store in Reading, Pennsylvania, which was robbed, the sum of $2,175 being taken by the robbers. One of the robbers was apprehended in Pennsylvania, and disclosed the identity of the other two. The Pennsylvania authorities contacted by telegram the Birmingham police department informed them of the robbery, and that John Devers, who was fully described, was involved in the crime, and was supposed to be in Birmingham. The message also stated the robbers had in their possession about $1,500, which was a part of the stolen money, saying in part: "These men are armed and will resist. Contacted accomplice whom we have in custody by wire to meet them there today. Have about fifteen hundred dollars which was taken in hold up here October third." There was also telephone conversation with the Pennsylvania authorities giving further details, identifying Devers, and that he was supposed to have brought the stolen money with him. Devers and his associates were arrested, and the $1,130 claimed by Devers was taken from them, Devers claiming at the time it was money he had won at gambling.

Devers waived extradition papers, and willingly accompanied the Pennsylvania authorities to that state where he was convicted of this offense of robbery and given a sentence of seven and one-half to fifteen years in the penitentiary.

While there are many respectable authorities holding to the view that money taken from a prisoner by police officials is not subject to attachment or garnishment upon the ground that it is in the custody of the law, and would open the door to grave abuses (16 A.L.R. 378, et seq.), yet this question was fully discussed and settled by this Court to the contrary in Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L.R.A. 120, 25 Am.St.Rep. 23, approvingly cited in Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am.St.Rep. 27, and needs no further elaboration here.

As to the objection the money is in custody of the law, that was long ago answered in this State by our statute, now section 8060, Code of 1923, and as pointed out in the Hurn case supra, 92 Ala., on page 105 of the opinion, 9 So. 515, 13 L.R.A. 120, 25 Am.St.Rep. 23. And upon the question of "grave abuse" our holding is (Hurn case, supra) that, as of course, a levy obtained by trickery, fraud or trespass is invalid, but that as under our statute money in the hands of an officer may be attached, money obtained from the possession of a person arrested on a criminal charge and searched, if it was connected with the offense charged or might be used as evidence, or if the officer had probable grounds for so...

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1 cases
  • Aaron v. State
    • United States
    • Alabama Supreme Court
    • July 14, 1960
    ...not committed in his presence, if he has reasonable cause to believe that the person arrested committed the offense. Devers v. Harris, 238 Ala. 610, 193 So. 110. See also Ex parte Rhodes, 202 Ala. 68, 79 So. 462, 1 A.L.R. 568. It is not averred that Aaron was not arrested for a felony or th......

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