New Morgan County Building & Loan Ass'n v. Plemmons

• Decision Date: 07 June 1923
• Docket Number: 8 Div. 491.
• Citation: 210 Ala. 16,97 So. 46
• Parties: NEW MORGAN COUNTY BUILDING & LOAN ASS'N ET AL. v. PLEMMONS.
• Court: Alabama Supreme Court

97 So. 46

210 Ala. 16

NEW MORGAN COUNTY BUILDING & LOAN ASS'N ET AL. v. PLEMMONS.

8 Div. 491.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by Lillian M. Plemmons against the New Morgan County Building & Loan Association and others. From a judgment for plaintiff the named defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

E. W Godbey, of Decatur, for appellant.

Sample & Kilpatrick, of Hartsells, for appellee.

MILLER J.

This is a suit by Lillian M. Plemmons against the New Morgan County Building & Loan Association, a corporation, J. V. May, and the National Surety Company, a corporation, for damages for wrongfully taking certain household and kitchen furniture described in the complaint, property of plaintiff, by a levy under a writ of attachment issued in favor of the New Morgan County Building & Loan Association and against the estate of R. G. Plemmons.

The complaint avers the property mentioned in the complaint belonged to plaintiff; that J. V. May was sheriff of the county, and under the writ of attachment wrongfully levied on it, and took it as the property of R. G. Plemmons, and that the defendant National Surety Company was the surety on the official bond of the sheriff May at the time of the levy, and that the defendant New Morgan County Building & Loan Association was plaintiff in the attachment suit, and directed the sheriff to seize and take the property under the writ. There were four counts in the complaint, counts 1, 2 and 3 being submitted to the jury. Count 4 went out under the general oral charge of the court and by the general affirmative charge with hypothesis in favor of the defendants, which was requested in writing and given by the court as to this count. The defendants pleaded "general issue in short, with leave to give in evidence any matter that would be a good defense, if specially pleaded."

The jury returned a verdict in favor of the plaintiff against all of the defendants. Only one defendant appealed from the judgment rendered by the court on the verdict; but the other two defendants appear in this court and jointly and severally assign errors. An appeal was taken in this case from the judgment by only one defendant, the New Morgan County Building & Loan Association, when the judgment was against three defendants. This is permissible under our statute, and the other two defendants, or either of them, may, as these two defendants did, appear in this court, join in the appeal, and assign errors. Section 2884, Code 1907, as amended Gen. Acts 1911, p. 589; L. & N. R. R. Co. v. Shikle, 206 Ala. 494, headnote 8, 90 So. 900; City of Birmingham v. Hawkins, 196 Ala. 127, headnote 7, 72 So. 25.

The New Morgan County Building & Loan Association sued out, by making affidavit and giving bond, a writ of attachment against R. G. Plemmons, to collect $90 rent for a dwelling occupied and rented by him. The writ of attachment was issued by the clerk of the Morgan county court, and it was executed by the sheriff by levying on certain household, kitchen, and dining room furniture in this house as the property of the defendant in the attachment suit. The plaintiff in this case, wife of defendant in the attachment suit, made affidavit and gave bond, claiming most of the property attached. The court, on motion of plaintiff in the attachment suit, quashed the claim bond because it was insufficient. The claimant in that suit, plaintiff in this, failed to give another claim bond; the court issued an alias writ of attachment, and it was executed by the sheriff's deputy by relevying on practically the same property after an indemnifying bond was given the sheriff by the plaintiff in the attachment suit. The deputy sheriff, witness for the plaintiff, testified in substance that the defendant in the attachment suit requested him not to go to the house to make the levy until 10 o'clock on April 7th, so his wife, the plaintiff in this suit, who was nervous, could remove all the wearing apparel belonging to himself and children from the house. This was granted by the deputy. When the levy was made the plaintiff was not present, having gone to her sister's, but her husband was present.

The plaintiff was asked this question, over objection of defendants:

"Were you informed that the sheriff was going to make a levy on that property before you left home that morning?"

The court refused to exclude from the jury the following answer to it:

"Yes, sir; I was informed by Mr. Plemmons telling me."

This was clearly hearsay evidence. It was a conversation or talk between husband and wife, with none of the defendants present. The court erred in these rulings; but we see no injury to the rights of defendants by this evidence. 6 Michie's Dig. Hearsay Evi. p. 257, § 228 (1); rule 45 (175 Ala. xxi, 61 South. ix).

The following question was asked her over objection of defendants, and the motion to exclude the answer was overruled by the court:

"Just prior to that and between the time you made this affidavit and bond, had you suffered from any ailment?"

She answered, "Yes, sir." The property was levied on under the alias writ of attachment about 10 o'clock on the morning of April 7th. The plaintiff testified:

"I was not able to sit up all day long without lying down; in a very weak condition at the time I left home on the morning of April 7th, between 9 and 10 o'clock," and, "as well as I remember, it was right cold on that day. *** My

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