Ex parte Hurn

Decision Date16 June 1891
Citation92 Ala. 102,9 So. 515
CourtAlabama Supreme Court

Application for mandamus.

Moore & Finley, for petitioner.

Lomax & Tyson, for respondent.


The petitioner, Hurn, having been arrested on the criminal charge of fraudulently obtaining goods on a credit, was searched by the officer making the arrest, who took from him $1,124.40 found concealed in his clothing. The prisoner and the money were delivered to the sheriff of the county. An attachment having been sued out against the defendant, Hurn was placed in the hands of the sheriff, and by him levied upon the money in his possession. This was followed by a writ of garnishment executed by the coroner of the county upon the sheriff. The attachment and garnishment suits were made returnable to the city court of Montgomery. The sheriff, as garnishee, filed his answer, setting up the facts and circumstances under which he came in possession of the money, paid the money into court, and prayed "that all proper issues and orders be made up under the direction of the court, in order that it might be ascertained to whom the money should be paid." The defendant Hurn moved the court for an order that the money be restored to him, "upon the grounds that his person had been searched in violation of law, and the money wrongfully, illegally, and violently taken from his person." The suit by attachment, and upon which the garnishment issued was still pending and undisposed of at the hearing of the motion. The court refused to permit movant to introduce affidavits in support of the facts stated in his petition and made the following order: "April 14th, 1891. Motion overruled, (1) because the court is without jurisdiction; (2) because the facts set out in the motion present an issue to be decided by the jury in the trial of the attachment suit." From this order overruling the motion, the petitioner applies to this court for a mandamus "upon the grounds that the court refused to hear and determine the motion," etc.

In Ex parte Redd, 73 Ala. 549, it was declared that the coercive process of mandamus is proper when an inferior court refuses to proceed to judgment in a case in which the law makes it his duty to act. This court compels judgment, but will not control it. In Ex parte Schmidt, 62 Ala. 254, it was held that the writ would lie to compel the execution of ministerial duties in all proper cases, but would not be awarded to order or direct what judgment shall be rendered in any given case; nor can its powers be invoked to correct any error in the final judgment or decree of an inferior court. In such cases there is an adequate remedy by appeal. Ex parte Echols, 39 Ala. 700; Ex parte State Bar Ass'n, (Ala.) 8 South. Rep. 768. In the case of petitioner, the court overruled the motion. The motion has been disposed of by judicial action of the court. Whether the court erred in the order overruling the motion, or in not receiving in evidence the affidavits offered in support of the petition, or whether the reasons assigned by the court for overruling the motion are sufficient, cannot be reviewed on an application for the writ of mandamus. Such questions are revisable only by appeal. The remedy by appeal seems to have been resorted to in the cases cited by appellant. Both parties have argued the case upon its merits, and in view of such intimation from counsel, it may not be improper to consider the real question involved in the case. It is the law that the levy of an attachment procured by trickery, fraud, or trespass will be held to be invalid, and the officer who makes a levy by such means exposes himself to an action in damages. Wap. Attachm. 180. An officer cannot forcibly take property from the person of a defendant, and if a levy is effected by force, fraud, or violence of any kind, it is generally held void. 1 Wade, Attachm. § 130; Mack v. Parks, 8 Gray, 517; Folmar v. Copeland, 57 Ala. 588; Street v. Sinclair, 71 Ala. 110. In Drake on Attachment (section 506) it is said: "An officer, under criminal process against a person, arrested and took from him money and property found in his possession. The officer was summoned to answer as garnishee of the prisoner. It was held that the officer was exempt from garnishment." The text here quoted from Drake on Attachment refers to two decisions from Massachusetts: Robinson v. Howard, 7 Cush. 257, and Morris v. Penniman, 14 Gray, 220. An examination of these decisions shows that they were based upon a statute of the state which provided that no person should be adjudged a trustee "by reason of any money in his hands as a public officer, and for which he is accountable to the defendant as such officer." In another section of the Massachusetts Code it is declared that money collected by the sheriff by force of legal process in favor of the defendant in the trustee process could not be reached by trustee proceedings. These statutes have been brought forward, and may be found in the Massachusetts Statutes of 1882, (page 1055.) The case of Zurcher v. Magee, 2 Ala. 253, is to the same effect as the Massachusetts decisions holding money in the hands of the sheriff, collected by him, to be "in the custody of the law." Since the decision in 2 Ala., supra, was rendered, the law has been changed by statute, (Code 1886, § 2950,) and now money in the hands of the sheriff or other officer may be attached, and as was held in Pruitt v. Armstrong, 56 Ala. 310, the law as declared in 2 Ala. no longer prevails. The law as cited from Drake, supra, and the cases cited from Massachusetts, being based upon a statute of that state different from the statute of this state, cannot be regarded as authority upon the question.

The case of Closson v. Morrison, 47 N.H. 483, is very much in point. In that case the deputy-sheriff, having arrested the plaintiff on a complaint for larceny, searched him, and took from his person a watch and chain and money and on the next day, while this money was in his possession, it was attached by the party who had made the criminal charge, and also by another creditor. The New Hampshire statute provides that "any officer who shall find any implement, article, or thing, kept, used, or designed to be used in violation of law, or in the commission of any offense, in the possession of or belonging to any person arrested, or liable to be arrested, for such offense or violation of law, shall bring such implement, article, or thing before the justice or court having jurisdiction of the offense, who shall make such order respecting their custody or destruction as justice may require." The court held that a due regard for his own safety on the part of the officer, and also for the public safety, would justify a search and seizure of any deadly weapon he might find upon the prisoner, and hold them until he was discharged, or otherwise properly disposed of, and further held the sheriff might seize any money or other articles of value found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools or implements or weapons with which to effect his escape. The court further held that the validity of the attachment depended upon the bona fides or the mala fides of the search and seizure of the property; that, if this was done in order to effect a levy, it would be invalid; but if done with a due regard to the public safety, and to secure the safety of the prisoner only then the separation of the property from the person of the defendant was lawful, and it would then be subject to attachment as property not found upon the person. Whether it was bona fide or not was a question for the jury, under all the evidence. In the case of Spalding v. Preston, 21 Vt. 9, the sheriff arrested one Russell on a charge of counterfeiting, and took from his person a lot of German silver, and held it under the order of the state attorney. He was sued by one Preston, who claimed to be the owner of the property by purchase. The court (REDFIELD, J.) held that the sheriff was not liable for a trespass. Much is said in this opinion not applicable to the case at bar, and is cited as an authority as to the right and duty of the sheriff to search and take from a prisoner property found on his person. In Waples on Attachment and Garnishment (page 181) the principle is laid down that, if the plaintiff in attachment is not an instigator or co-worker with the officer in obtaining an unauthorized and illegal levy, he ought not to lose the benefit of an attachment, and that the circumstances of each particular case must determine whether the official wrong-doing was such as to invalidate the levy. In the case of Gile v. Devens, 11 Cush. 61, 62, the court recognized the distinction in cases where unlawful means were used for the purpose of seizing the property, and the seizure was effected by those means, and in cases where the levy was in no way connected with or effected through the unlawful act of the officer. In Hitchcock v. Holmes, 43 Conn. 528, the court recognized the rule that a levy could not be effected by a trespass, but held that an officer with a writ of attachment in his possession, who was invited by a servant, not knowing the purpose of the officer in calling, to enter a dwelling-house, was lawfully in, and authorized to make a levy upon such household goods as were liable to satisfy the attachment. In the case of Pomroy v. Parmlee, 9 Iowa, 140, the facts as stated in the opinion were as follows: Plaintiffs sued out a warrant in Scott county upon a criminal charge against the defendant, and, at or about the same time, a writ of attachment. The sheriff, with E. S. Pomroy and a deputy, followed the defendant, and overtook him in Poweshiek county, and there arrested him, and took possession and...

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42 cases
  • Banks v. State
    • United States
    • Alabama Court of Appeals
    • June 30, 1921
    ... ... "unauthorized" search of defendants resulted in the ... discovery of a pistol unlawfully concealed about the person; ... Ex parte Hurn, 92 Ala. 102, 112, 19 So. 515, 13 L. R. A. 120, ... 25 Am. St. Rep. 23, where the prisoner was under arrest on a ... criminal charge and, ... ...
  • United States v. Bell
    • United States
    • U.S. District Court — Southern District of California
    • February 13, 1943
    ...doctrine is laid down in Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090, 39 L.R.A. 165, 64 Am.St. Rep. 524; Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L.R.A. 120, 25 Am.St.Rep. 23; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L.R.A.,N.S., 253, 125 Am.St.Rep. "It is the duty of the officer ma......
  • Birchfield v. N. Dakota. William Robert Bernard
    • United States
    • U.S. Supreme Court
    • June 23, 2016
    ...confirmed the searches' broad acceptance. E.g., Holker v. Hennessey, 141 Mo. 527, 539–540, 42 S.W. 1090, 1093 (1897); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519 (1891); Thatcher v. Weeks, 79 Me. 547, 548–549, 11 A. 599 (1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); F. Wharton, Cri......
  • Strauss v. State
    • United States
    • North Dakota Supreme Court
    • April 4, 1917
    ... ... Co. 36 Cal ... 283; Davis v. Wallace, 4 Cal. Unrep. 949, 38 P ... 1107; State ex rel. Child v. Smith, 19 Wis. 531; Ex ... parte Des Moines & M. R. Co. 103 U.S. 794, 26 L.Ed. 461; Ex ... parte Hurn, 13 L.R.A. 120 and note, 92 Ala. 102, 25 Am. St ... Rep. 23, 9 So. 515; ... ...
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