Joseph v. Henderson
Decision Date | 07 April 1892 |
Parties | JOSEPH v. HENDERSON. |
Court | Alabama Supreme Court |
Appeal from circuit court, Randolph county; JAMES R. DOWDELL, Judge.
Action by Samuel Henderson against M. Joseph to recover damages for the alleged wrongful levy of an attachment upon a certain stock of goods. As originally filed, the complaint contained but one count, which was as follows: "The plaintiff claims of the defendant five thousand dollars damages for wrongfully taking the following goods and chattels, the property of the plaintiff, viz., a stock of general merchandise formerly owned by A. J. Langley & Bro consisting of dry goods, groceries, hardware," etc "in the town of Roanoke, and in the Dane Manly building." The complaint was afterwards amended by adding the two following counts: "(3) The plaintiff further claims of the defendant five thousand dollars damages for the conversion by him on the ___ day of ___, 1889, of the following chattels: Certain goods wares, and merchandise which were in Roanoke, Ala., in a building known as the 'Manly Building,' the property of the plaintiff." Defendant demurred to the complaint as amended, on the grounds that there was a misjoinder of counts, in that the first and second counts were in trespass and case, and the third in trover, and that the counts did not sufficiently describe the property levied on; and that, under the facts stated in the second count, plaintiff was not entitled to recover the goods claimed to have been levied on at the instance of defendant; because it is alleged in said count that the goods were not in the possession of the plaintiff, but were in the custody of the law under a prior attachment, which had been levied on them. The first-mentioned grounds were sustained by the court, and the others were overruled. The plaintiff amended his complaint by striking out the third count thereof. It appeared from the pleadings that plaintiff was the assignee of A. J. Langley & Bro., who had made an assignment of their stock of goods to him for the benefit of their creditors; that at the time of the levy of the attachment at the suit of defendant the goods were not in the possession of plaintiff, but were in the hands of the sheriff, having been previously levied upon under writs of attachment issued at the suits of three several creditors of the firm of A. J. Langley & Bro.; and that while so in the possession of the sheriff, under the prior writs of attachment, the attachment, at the instance of defendant, was levied upon them, subject to the three prior attachments. From the rulings of the court on the demurrers, defendant appeals. Affirmed.
J. M. & E. M. Oliver, for appellant.
N. D. Denson, for appellee.
The record brings up for review only the rulings of the trial court upon the pleadings. The complaint was amended by striking out the count in trover, leaving only the first and second counts of the complaint. The first count is in trespass, and in the usual form, as prescribed by the Code. All assignments as cause for demurrer to this count, or to the complaint as a whole, were properly overruled. There is some contention as to whether the second count is in case or trespass. Trespass and case may be joined under section 2673 of the Code. The averments of the second count show that the plaintiff was not in possession of the property, and did not have the right to the immediate possession when the levy complained of was made, but, whether in case or trespass, the demurrer to the second count raises the question as to its sufficiency to show a cause of action. A creditor who causes an attachment to be wrongfully levied upon property is equally guilty of a trespass as the officer who makes the levy. The second count does not negative the fact that the prior attachment sued out against A. J. Langley & Bro., and which was levied upon the stock of goods, the subject of controversy, was wrongfully sued out, or wrongfully levied upon the goods. Applying the rule that the pleadings must be construed strictly against the pleader, we are of opinion that this count shows that, the...
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...on the case may be joined by virtue of the statute (Buckalew Adm'r v. T.C., I. & W.R. Co., 112 Ala. 146, 20 So. 606; Joseph v. Henderson, 95 Ala. 213, 218, 10 So. 843); that the statute did not give the right to join causes of action in the same count (L. & N.R. Co. v. Cofer, 110 Ala. 491, ......
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... ... allege the nature and kind of chattel referred to and the ... quantity or number converted. Moody v. Keener, 7 ... Port. 218; Joseph v. Henderson, 95 Ala. 213, 10 ... So. 843; Hooper v. Dorsey, 5 Ala.App. 463, 58 So ... 951; Beaumont v. Yantz, 1 Ill. 26; Richardson v ... ...
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