Ryan v. Young

• Court: Supreme Court of Alabama
• Citation: 41 So. 954,147 Ala. 660
• Parties: RYAN ET AL. v. YOUNG.
• Decision Date: 06 July 1906

41 So. 954

147 Ala. 660

RYAN ET AL.
v.
YOUNG.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

"To be officially reported."

Action by Martha L. Young against S. P. Ryan and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

D. W. Speake and W. L. Martin, for appellants.

Wert & Wert and E. W. Gardiner, for appellee.

DENSON, J.

Action of trover by Martha L. Young, plaintiff, against Silas P. Ryan, John L. Brock, and J. F. Lovin, defendants, for an alleged conversion of a stock of goods (drugs). The suit was commenced on the 2d day of July, 1898. The plaintiff claimed title to the goods by virtue of a mortgage which was executed to her by Thomas M. Cross on the 31st day of January, 1895. The mortgage indebtedness was evidenced by six notes given by the mortgagor to the mortgagee on the 22d day of January, 1895, each in the sum of $100, and due one year after date.

The complaint as originally filed alleged that the conversion occurred on the 28th day of March, 1898, but after the court overruled a demurrer filed by plaintiff to defendants' special plea numbered 2 which set up justification under an attachment issued at the suit of defendant John L. Brock against Thomas M. Cross on March 28, 1898, the plaintiff, by leave of the court, amended the complaint by striking out the date of the conversion as alleged and by inserting in [41 So. 955] lieu thereof as the date of the conversion, May 25, 1898. There were some special pleadings in the case, and the record is somewhat confusing as to the course of the proceedings with reference to part of it. By special plea 2, defendants set up justification under legal process, namely, the attachment issued at the suit of the defendant Brock against Thomas M. Cross. Plaintiff's demurrer to plea 2 was overruled, and she filed a general, and two special replications, 1, 2, and 3. The defendants demurred to the special replications, assigning several grounds of demurrer, and the demurrer was sustained. The plaintiff then amended the special replications 2 and 3 which amendment appears to have been filed on the 23d day of April, 1902; the defendants then demurred to the replications as amended which demurrer contains two grounds, and was filed April 23, 1902. The court overruled the demurrer to the replications as amended. The defendants then filed a rejoinder to replications 2 and 3 as amended. Only one rejoinder to said replications is shown by the record, and it bears date of filing April 23, 1902.

The minute entry shows that the trial was had on the 24th day of April, 1902, and recites that issue was joined between the parties on the plea of not guilty, special plea 2, and the replication as amended to said plea and on the rejoinder to said amended replication. After the evidence was closed, the plaintiff was allowed by the court to file another amendment to the replication to plea 2, and the judgment entry recites that the defendants demurred to the amendment, and that the demurrer was sustained, but the record does not show what the amendment was nor the demurrer to it; they were entirely atmospheric so far as the record shows. Neither does the record show that there was any refiling of previous demurrers made to the replications. Therefore, we cannot review rulings on demurrers to the special replications.

The judgment entry recites that by leave of the court the defendants filed an amendment to the rejoinder to the replication as last amended, and that the amended rejoinder is designated in the minute entry as rejoinder No. 3. We find no such rejoinder in the record and cannot know what it was, not can we review the ruling on the demurrer to it. Furthermore, if it should be contended that the rejoinder which appears in the record, is the rejoinder referred to in the minute entry as No. 3, the overrulng of the demurrer to it would be error without injury, as the record affirmatively shows, that the defendants were allowed to make proof of the facts alleged in it.

With reference to the pleadings we remark that there was no necessity whatever for the special pleading which encumbers the record in this case. In trover, not guilty puts in issue every matter which might be pleaded in bar, except a release. Morris v. Hall, 41 Ala. 510; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36. In the last case cited, the reason for the rule is explicitly stated, and we will not consume time in repeating it here. Under the rule above stated no necessity arises for consideration of the ruling of the court on the demurrers to special pleas 3, 4, and 5, if the matters alleged in those pleas were good in defense, the defendants could have availed themselves of the defense under the general issue upon which the record shows issue was joined. The record shows affirmatively that the defendants attempted to make proof of the matters alleged in said pleas. L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 So. 603; N. C. & St. L. Ry. v. Bates, 133 Ala. 447, 32 So. 589.

The circuit court tried the case upon the theory that the sheriff, in selling the property seized at a place other than the one advertised, thereby became a trespasser ab initio, and was bereft of protection under the attachment writs. And this being true, that it was immaterial as to the attitude the plaintiff as mortgagee occupied with reference to the creditors of the defendant in attachment so far as the defendants were concerned; the mortgage being valid as between the mortgagor and mortgagee.

Applying the theory as above stated to the case it was very natural that the trial terminated as it did in a verdict for the plaintiff. It has never been doubted that if an officer has legal process to execute, and voluntarily abuses and convert it to other purposes, he is not only a trespasser in that act, but becomes one ab initio, and is thus liable for all he has done under the process. This rule of the common law applies to all subordinate executive officers, and serves to confine them within the limits of their legal duties. Bacon's Abr. Trespass. B; Brock v. Berry, 132 Ala. 95, 31 So. 517, and cases there cited. Ross v. Philbrick, 39 Me. 29; Allen v. Crofoot, 5 Wend. (N. Y.) 506.

It is unnecessary to discuss the abstract proposition that a sheriff...