Higdon v. Warrant Warehouse Co.

• Decision Date: 17 June 1913
• Citation: 63 So. 938,10 Ala.App. 496
• Parties: HIGDON v. WARRANT WAREHOUSE CO.
• Court: Alabama Court of Appeals

63 So. 938

10 Ala.App. 496

HIGDON v. WARRANT WAREHOUSE CO.

Court of Appeals of Alabama

June 17, 1913

On Rehearing, November 11, 1913

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by E.L. Higdon, as sheriff, against the Warrant Warehouse Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Count 1 of the complaint as amended is as follows: "Plaintiff claims of the defendant the sum of $200 damages, for this, to wit, that on, to wit, the 29th day of November, 1910, at Birmingham, Ala., the plaintiff, who was sheriff of Jefferson county, through his deputy, one Sid Cowan, levied upon two bales of cotton, the property of John Bowlin, the judgment debtor, upon which this plaintiff, by and through his said deputy, had levied an execution, delivered to him as such sheriff, which was stored in the warehouse of defendant's, and that the said deputy, Cowan, acting within the line and scope of his authority, after assuming dominion over said cotton, left the same with the defendant company, which said cotton was of value, to wit, $150, or $75 per bale. Said cotton was left with defendants to be by them safely and securely kept for the plaintiff for a compensation, and to return and redeliver to plaintiff on request. Plaintiff avers that he duly performed all conditions thereof on his part, and on or about, to wit, the 2d day of January, 1911, requested the defendants to redeliver the same. That defendants, not regarding their promise, did not take due care of and safely keep and deliver the said cotton to plaintiff, nor did they when so requested or at any time afterwards, redeliver the same to plaintiffs but, on the contrary, the defendants so negligently and carelessly conducted themselves with respect to the cotton and took so little care thereof, that by and through the mere carelessness and negligence or improper conduct of the defendants, or their servants, the cotton was wholly lost to plaintiff," etc.

W.K Terry, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

THOMAS, J.

The assignments of error relate only to the action of the trial court in refusing the affirmative charge requested by appellant and in overruling his motion for a new trial based on the grounds that the verdict was contrary to the evidence and was contrary to the law. The case is submitted on its merits and on appellee's motion to strike from the record the bill of exceptions, because prepared in violation of rule 32 of the rules of practice of circuit and inferior courts in that it is in large part but a stenographic report of the trial, giving seriatim the questions propounded to the witnesses, during the progress of their examination, by both counsel and the court, and their answers to the same in extenso. The bill is thus rendered unnecessarily prolix, and is such a flagrant violation of the rule mentioned that, under the following authorities, the motion to strike must prevail. Irby v. Kaigler, 6 Ala.App. 91, 60 So. 418; Hester v. Cantrell, 169 Ala. 490, 53 So. 1009; Birmingham Nat. Bank v. Bradley, 134 Ala. 660, 31 So. 1035; Chicago Portrait Co. v. Robbins, 155 Ala. 673, 45 So. 217.

The errors assigned are of a character, as noted, that cannot be reviewed without a bill of exceptions, and the judgment of the lower court will therefore be affirmed.

Affirmed.

On Rehearing.

It is suggested by appellant's counsel that it was necessary to set out the questions to and answers of the several witnesses in extenso in the bill of exceptions, in the shape as complained of and condemned in the foregoing opinion, in order for this court to be able to properly interpret or determine the real meaning and legal effect as evidence of those answers, which seems to have been a disputed question between the parties--the appellant here contending, in the first instance, that if his construction be correct there was no conflict in the evidence and he was consequently entitled to the affirmative charge, which was refused him; and, in the second instance, that if there was conflict the evidence was so overwhelming in his behalf that the court should have set aside the verdict and judgment for the defendant and granted a new trial on the motion, while, on the contrary, it was denied. On reconsideration, we are of opinion that there is merit in the suggestion as to the necessity in this particular case of so setting out in the bill of exceptions the questions to and answers of the several witnesses as they there appear, and therefore the order heretofore entered striking the bill of exceptions will be set aside and annulled; but, as we are still of opinion, after considering the case with the bill of exceptions as a part of the record, that the judgment of the lower court should be affirmed, as it was affirmed in the original opinion, the application of appellant for a rehearing will be denied.

The facts upon which the appellant (who was plaintiff below) bases his right to recover are so fully set forth in count 1 of the complaint as amended (which the Reporter will set out) as to be sufficient to a complete understanding of the points here considered and decided, without the necessity of a further statement of them in that particular. The defendant pleaded the general issue.

It is well settled that a sheriff (which the complaint discloses the plaintiff was) acquires by virtue of the levy a special title or property in the goods and chattels upon which he levies a writ of execution or attachment, which will support detinue, trover, or trespass against one who wrongfully disturbs his possession; and this is upon the theory that he is liable over to some one else for the value of the property. Cobb v. Cage, 7 Ala. 619; Foster v. Mabe, 4 Ala. 402, 37 Am.Dec. 749; Ryan v. Couch, 66 Ala. 250; Bruister v. Gavin, 127 Ala. 319, 28 So. 410; Chaney v. Lumber Co., 132 Ala. 317, 31 So. 369.

Upon the same principle and on the same reasoning, he can maintain a suit, as here, in assumpsit against one to whom he has intrusted as bailee the custody of the property pending the levy, for a breach by such party of the contract of bailment in failing or refusing to deliver the property upon the subsequent demand of the sheriff; or he may, of course, treat the refusal to deliver as a conversion of the property and sue in trover for the tort, rather than in assumpsit for the breach of the contract. Crescent News & Hotel Co. v. Hines, 61 So. 9; Easley v. Walker, 10 Ala. 671; Am. & Eng.Ency.Law, vol. 25, p. 707 et seq.; Story on Bailments, § 124 et seq.

His right of action in every case, however is dependent upon his liability over to some one else. He cannot, after he has been discharged from such liability, maintain the action, unless, of course, that discharge resulted from his payment of the liability. Ency. supra, and cases cited in note 1, p. 709. From the time of the levy until the property is sold and the proceeds paid to him, his liability for the value of the property levied upon is to the plaintiff in execution, who had the right to have the property sold at execution sale and its proceeds applied to the judgment. When, however, those proceeds have, as a result of such...