Rasco v. Jefferson

• Decision Date: 01 February 1905
• Citation: 142 Ala. 705,38 So. 246
• Parties: RASCO ET AL. v. JEFFERSON.
• Court: Alabama Supreme Court

38 So. 246

142 Ala. 705

RASCO ET AL. v. JEFFERSON.

Supreme Court of Alabama

February 1, 1905

Appeal from Circuit Court, Hail County; John Moore, Judge.

Action by Catherine Jefferson against W. P. Rasco and others for breach of defendant Rasco's official bond as constable in the levy of an execution on a judgment against plaintiff's husband, Bab Jefferson, on property alleged to belong to plaintiff. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The complaint, as filed, contained two counts. The first count sought to recover $300 damages for the breach of the official bond to said W. P. Rasco, and set out said bond in hæc verba and then averred that the bond was breached by reason of the defendant Rasco, as constable, levying an execution issued on a judgment issued against Bab Jefferson upon personal property belonging to the plaintiff, without setting out or in any way describing the property so levied upon. The second count was substantially the same as the first count, with the exception that it did not set out the bond at length. In each of the counts it was averred that the defendant Rasco levied the execution upon the property involved in the controversy after being notified by the plaintiff that it was not the property of the defendant in execution, but was the property of the plaintiff. The defendants pleaded the general issue and "that the cause of action is barred by the statute of limitations of one year," and two special pleas designated B and C. In plea B, the defendant averred that the plaintiff on one or more occasions stated to the defendant Rasco that the property afterwards levied upon by him as such constable was the property of the said defendant in execution, and that therefore the plaintiff was estopped to allege that the property so levied upon by said Rasco as constable, and sold under the execution, was her property. To this plea the plaintiff demurred upon the ground that said plea shows on its face that the statements alleged to have been made by the plaintiff were made before the levy of the execution, and because the plea fails to aver that the said Rasco was not notified by the plaintiff before the sale that the property was the property of the plaintiff. This demurrer was sustained, and the plea was amended so as to aver that such statements were made by the plaintiff after the levy of the execution upon the property in question. To this plea, as amended, the plaintiff filed a replication in which she averred that after having made the statements set up in said plea--that the property could be sold--she notified said Rasco not to sell said property, and appeared at the sale and forbade said sale. Issue was joined upon replication to this plea, and also upon the plea of the general issue and the plea of the statute of limitations.

On the trial of the case it was shown that, upon a judgment recovered in justice of the peace court against the husband of the plaintiff, execution was issued, and put in the hands of the defendant Rasco, as constable; that he levied said execution upon certain cows. The evidence for the plaintiff tended to show that the cows levied upon were her property while the defendant introduced evidence tending to show that the defendant in execution had stated on several occasions that the cows levied upon belonged to him. During the examination of the plaintiff as a witness, she testified that she told the defendant Rasco that the property which he levied upon and subsequently sold was hers, and not to take said property. She then testified, "I told him to look at all my twelve babies." The defendant moved to exclude this statement upon the ground that it called for irrelevant immaterial, and incompetent evidence. The court overruled the motion, and the defendants duly excepted. The defendant, as a witness in his own behalf, testified that he levied the execution upon the property in controversy, and he was then asked by the defendants the following question: "Whose property was that?" The plaintiff objected to this question upon...