Leader v. Mattingly

• Citation: 37 So. 270,140 Ala. 444
• Parties: LEADER ET AL. v. MATTINGLY.
• Decision Date: 16 June 1904
• Court: Supreme Court of Alabama

37 So. 270

140 Ala. 444

LEADER ET AL. v. MATTINGLY.

Supreme Court of Alabama

June 16, 1904

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action by J. L. Mattingly against A. S. Leader and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The complaint, as originally filed, contained one count, and it was averred therein that the indemnity bond sued on was executed March 4, 1901, by the defendants, was payable to the plaintiff, and conditioned that, inasmuch as the execution in favor of said A. S. Leader had been issued out of the justice of the peace court, and had been placed in the hands of the plaintiff as constable, and that said Leader had directed the plaintiff to levy said execution upon one bay mare as the property of Reuben Winn, the defendant in execution, and that as there was some doubt as to whether the property belonged to said Reuben Winn, the defendants should hold the said Mattingly harmless in making said levy, and should indemnify and pay him all damages and costs he might incur and pay all damages which might be rendered against him for levying said execution upon said property. It was then averred in the complaint that after the execution of said bond and indemnity the plaintiff levied the execution upon said property, and one Lula Winn recovered a judgment, together with costs, on March 17, 1902, against him, amounting to $99.01, which said judgment the plaintiff was forced to pay, and was therefore damaged to such extent. The complaint, as originally filed did not state the amount of the judgment and costs recovered and was amended so as to state said amount. To the complaint as originally filed and as amended, the defendants demurred upon the ground that there was joined therein a cause of action ex delicto with a cause of action ex contractu. This demurrer was overruled. Thereupon the defendant A. S. Leader filed a special plea, in which he set up that prior to the institution of the present suit the said A. S. Leader had filed his petition in the District Court of the United States asking to be declared bankrupt, and that prior to the institution of the present cause of action the petition of the plaintiff was granted by order of the District Court of the United States, and the said A. S. Leader was declared a bankrupt, and was discharged from all debts and claims which were made payable by the bankrupt act of the United States against said Leader's estate; that the said Leader's petition was filed in the bankrupt court on January 24, 1902 and that the plaintiff's said cause of action was provable under the bankruptcy act and existed on said 24th day of January, 1902. The other defendants, who were sureties, separately filed several special pleas, in which they set up the fact that A. S. Leader, who was the principal on the indemnity bond sued on, had been by regular proceedings instituted prior to the bringing of the present suit adjudged and declared a bankrupt, and discharged from all debts and liabilities, and that the claim of said plaintiff and said indemnity bond was proven under the bankruptcy law, and that, therefore, the principal upon said bond having been declared a bankrupt, and discharged from all debts and liabilities, including the present claim sued upon his sureties on said bond were discharged. To each of the special pleas filed by A. S. Leader as principal on said indemnity bond and each of the sureties thereon, respectively, the plaintiff demurred upon the following grounds: (1) During the pendency of said bankruptcy proceedings plaintiff's said cause of action was unliquidated, and had not arisen. (2) That the claim of the plaintiff was not provable under the bankruptcy law, and was not such a debt or claim as Leader's discharge in bankruptcy would be effective against. (3) Because it does not appear that said Leader was...