Pruett v. Williams

• Decision Date: 30 June 1908
• Citation: 47 So. 318,156 Ala. 346
• Parties: PRUETT ET AL. v. WILLIAMS. [d1]
• Court: Alabama Supreme Court

47 So. 318

156 Ala. 346

PRUETT ET AL. v. WILLIAMS. ^[d1]

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

Action by Joe Williams against F. M. Pruett and others, on Pruett's bond as constable. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The complaint is as follows: "Plaintiff claims of defendants $200 damages, for that on, to wit, the 19th day of November 1904, defendant F. M. Pruett, as principal, and defendants G D. Gosden and D. M. White, as his sureties, executed and entered into the following bond or obligation, to wit [[[Here follows a copy of the official bond of Pruett as constable, with the sureties as above set out. The bond is in the sum of $1,000, and conditioned as required by law. The bond was taken and approved and filed according to law.] And plaintiff avers that there has been a breach in the condition of said bond, in this: That on the 18th day of January, 1905 a writ of seizure in an action of detinue was issued by John A. Darden, a notary public and ex officio justice of the peace in and for said precinct No. 4, in said county and state, in favor of J. A. Penton and against A. J. Williams and plaintiff as defendants therein, for the recovery of one cow and calf and one horse, which said writ of seizure was executed on the 19th day of January, 1905, and said property to wit, one horse, was taken into the possession of said Pruett, as constable of said precinct, and by him held under and by virtue of said writ and seizure; and on, to wit, the 23d day of January, 1903, while said Pruett held and had possession of said property under said writ of seizure, and acting under the color of his office in said matter, plaintiff tendered and presented to said Pruett, as such constable, a bond in double the value of said horse, as fixed by said Pruett, payable to J. A. Penton, plaintiff in said writ, with good and sufficient sureties thereon, and conditioned that, if plaintiff [defendant in said detinue suit] is cast in said suit, he would deliver said horse to plaintiff therein, the said J. A. Penton, within 30 days thereafter, and pay all such costs and damages as may accrue from the detention thereof, and demanded from said Pruett the possession of said horse; and said Pruett then and there willfully, wrongfully, and unlawfully failed and refused to deliver to plaintiff possession of said horse, and withheld same from plaintiff, and plaintiff has thereby been unlawfully deprived of the possession and use of said horse, and has been forced thereby to employ an attorney and incur great expense, to wit, $50 attorney's fee, and much loss of time, and great mental worry and trouble, to obtain possession of his said property, all to his damage, etc. Plaintiff alleges that there has been a further breach of the bond, in this: [Same as first breach alleged, with the additional allegation of loss of time of 10 days, worth $10 all on account of the wrongful acts of said constable.] Plaintiff avers that there has been a further and additional breach in the condition of the said bond above set out, in this: That on, to wit, the 23d day of January, 1905, a trial of said detinue suit was had in the justice court of precinct No. 4, in said county, before John A. Darden, notary public and ex officio justice of the peace as aforesaid, and a judgment rendered in favor of plaintiff in this suit, one of defendants in the detinue suit, for the possession of said horse, and adjudging that plaintiff in said suit had no right or title or right to recover said horse as against this plaintiff, and that thereafter plaintiff demanded of said Pruett, constable as aforesaid, the possession of said horse, and said Pruett unlawfully and wrongfully withheld same from plaintiff, and refused and failed to deliver same to plaintiff, as by law he was bound and it was his duty to do, and the same thereby was unlawfully withheld from plaintiff, and plaintiff has been deprived of the possession and use of his said horse, and has been forced to employ an attorney, etc. [ Same damages as explained in specification No. 1.]"

Demurrers were interposed, because the count fails to set out the writ of detinue referred to, or the substance thereof; because the bond that was tendered to said Pruett is not set out; said complaint shows on its face that the property was in the custody of the law at the time complained about in said complaint,...