Higdon v. Garrett

• Citation: 59 So. 309,5 Ala.App. 467
• Parties: HIGDON, SHERIFF, v. GARRETT.
• Decision Date: 14 May 1912
• Court: Alabama Court of Appeals

59 So. 309

5 Ala.App. 467

HIGDON, SHERIFF, v. GARRETT.

Court of Appeals of Alabama

May 14, 1912

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Mrs. W. J. Garrett against E. L. Higdon, as sheriff, in trespass and trover. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count claimed damages for the wrongful taking of the following goods and chattels, the property of the plaintiff on, to wit, the 21st day of December, 1907, to wit: 12 mattings, 14 tables, a lot of rugs, a lot of curtains, 4 rocking chairs, 56 chairs, 1 hatrack, 1 water cooler, 11 dressers, 11 wash stands, 25 bedsteads, 25 bed springs, 25 mattresses, 12 bowls and 12 pitchers, a lot of shades, 2 heaters, 1 safe, 1 refrigerator, 1 stove, a lot of dishes knives and forks, 6 table covers, a lot of table napkins, a lot of window and door screens, 24 blankets, 23 counterpanes 22 pairs of sheets, 29 feather pillows, and 50 quilts. Count 2 was for the conversion of the above articles alleged to be the goods and chattels of plaintiff. The amended third plea is as follows: "And for further answer to said complaint and each and every count thereof, separately and severally defendant pleads specially that before the bringing of the suit for rent by Mrs. Nora E. Miller against Mrs. W. H. Greene in the city court of Birmingham, on, to wit, the 21st day of December, 1907, and the issuing and levying of the attachment on the goods sued for, plaintiff in this cause informed the agent or agents of Mrs. Nora E. Miller, plaintiff in said attachment suit, that she retained no title to the goods, whereupon Mrs. Miller instituted said attachment suit for rent due on the two-story brick building No. 1820-22 Fifth avenue, Birmingham, Ala., amounting to the sum of $246.50, thereby incurring the expense and trouble incident thereto, which she would not have incurred but for said representations made to her, her agent or agents as aforesaid, and this defendant as such sheriff levied said attachment on said property, and has not illegally disposed of same, and plaintiff is thereby estopped from bringing this action, and defendant avers that he is not liable herein."

James W. Strother, of Dadeville, for appellant.

L. J. Haley, Jr., of Birmingham, for appellee.

WALKER, P.J.

The complaint contained two counts, each of them following a form prescribed by the Code, the first being for trespass in taking personal property, and the second for conversion. There can be no question as to each of the counts alleging a cause of action, as each of them avers a breach of duty in a manner...