Johnson v. Collier

• Decision Date: 18 February 1909
• Citation: 161 Ala. 204,49 So. 761
• Parties: JOHNSON ET AL. v. COLLIER.
• Court: Alabama Supreme Court

49 So. 761

161 Ala. 204

JOHNSON ET AL. v. COLLIER.

Supreme Court of Alabama

February 18, 1909

Rehearing Denied April 7, 1909.

Appeal from City Court of Gadsden; J. H. Disque, Judge.

Action by B. T. Collier against T. L. Johnson and the sheriff and his official bond, in trespass for selling exempt property. From a judgment for plaintiff, defendants appeal. Affirmed.

McClellan J., dissenting.

The facts in the case are that T. L. Johnson, who has since died recovered of B. T. Collier a sum of money lost on a wager under a complaint for money had and received and a special count for money received on a bet or wager. Under this judgment, and at the procurement of the plaintiff, execution was issued against Collier and by the sheriff levied upon certain personal property belonging to Collier, less in value than $1,000. Collier filed his claim of exemptions to the property levied on, and lodged it with the sheriff, and requested that the levy be discharged. No contest of the claim was filed by plaintiff in execution, and the sheriff disregarding the exemptions, proceeded to sell the property under the execution, after notice being given at the time of the sale of the fact that the property was claimed as exempt and that the claim had been filed and lodged with the sheriff. The plaintiff became the purchaser at the execution sale. There was judgment for Collier in the sum of $1,500, and the value of the property sold was variously estimated at from $500 to $750.

George D. Motley and J. M. Chilton, for appellants.

Bilbro, Inzer & Stephens and Goodhue & Blackwood, for appellee.

DOWDELL J.

The first question for our consideration in this case is whether a claim of exemption can be made to personal property levied on under execution issued upon a judgment based on a complaint for money lost on a wager. The answer to this question involves the determination of the character of the action in which the judgment was rendered, whether in tort or contract. In the present instance the judgment on which the execution was issued was founded on a complaint containing a count for money had and received, etc., and a special count declaring for so much money lost by the plaintiff and won by the defendant on a wager.

The count for money had and received is unquestionably in indebitatus assumpsit; and hence an action ex contractu. The special count to recover back money lost and paid on a wager on the principle stated in Motlow v. Johnson, 151 Ala. 276, 44 So. 42, wherein it was said, "It is money which the law ex equo et bono considers as belonging to the plaintiff," is essentially of the same nature, and therefore an action ex contractu. The provisions of the Constitution and statute relating to exemptions are not confined to debts arising out of express contracts, but extend also to such as arise out of implied contracts. This is a proposition of law too well settled to admit of any dispute. We are clearly of the opinion that Collier, the defendant in execution, could set up his claim to exemptions under the levy, and, if contested, was entitled to a hearing on such contest as provided by the statute. It was the duty of the sheriff under the law when the claim of exemptions was made, if no contest of such exemptions was filed as provided by the statute (section 2047 of Code 1896), to discharge the levy. If a contest was filed, then it was the sheriff's duty under the statute section 2050, Code 1896, to have returned the process and other papers to the court to which the process was returnable, accompanied with a full statement of the facts. Kennedy v. Smith, 99 Ala. 83, 11 So. 665.

The sheriff, in disregard of the duty imposed upon him by the statute, proceeded to sell, and did sell, the property levied on, and which was claimed as exempt. This was an abuse of process, and by such abuse of process he rendered himself a trespasser ab initio. When the claim of exemptions was lodged with the sheriff, he had the right to look to the judgment upon which the execution was issued and to the complaint upon which the judgment was based, and it was his duty to do so, to determine whether under the law on the face of the record the defendant in judgment and execution was entitled to claim exemption, but beyond this the sheriff would not be authorized to go to determine the defendant's right to claim. We are not to be understood as deciding that the right to exemptions under execution is to be tested solely by the mere form of the action, but rather by the cause of the action as shown in the complaint. An action of debt which is an action ex contractu is a proper remedy to recover a penalty; yet the claim of exemptions as against an execution on such a judgment could not be asserted. We understand the law to be if the cause of action, the foundation of the judgment, arises out of a tort, a claim of exemptions would not be available as against such judgment.

In the instant case the judgment was based upon a complaint which we think is ex contractu, and not ex delicto. It is true that both the plaintiff and defendant in making a wager on the election violated a criminal statute which subjected both to a prosecution. That, however, is not the cause of action declared on here. But for the statute which authorizes the recovery by action at law of money lost on a wager the plaintiff would have no right of action. The cause of action does not arise out of a tort. Could it be said that, when the defendant received the money voluntarily paid over to him by the plaintiff on the wager, he, the defendant, was guilty of any tortious act towards the plaintiff? We think not. The cause of action not being for penalty, nor arising out of a tort, but for money which the plaintiff paid the defendant on a void contract, and which the law says he may recover back,...