Smith v. Hilton

• Decision Date: 30 June 1906
• Citation: 147 Ala. 642,41 So. 747
• Parties: SMITH v. HILTON.
• Court: Alabama Supreme Court

41 So. 747

147 Ala. 642

SMITH v. HILTON.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

"To be officially reported."

Action by A. H. Hilton against W. H. Smith. From a judgment for plaintiff, defendant appeals. Affirmed.

Espy &amp Farmer, for appellant.

R. P Coleman, for appellee.

HARALSON J.

It seems to be admitted on both sides, that C. A. Hardwick, who issued the attachment in favor of K. Blackmon, against the plaintiff in this case, A. H. Hilton, was not in fact a justice of the peace, at the time he issued such attachment. He had been a justice, whose term of office had expired, and he failed to give an official bond by the 10th of September 1904, as required by Act approved 17th September, 1903 (Gen Acts 1903, p. 238), which act provides, that the failure to execute such bond by that date, vacated the office.

The attachment was issued, therefore, by a person not authorized, and it was of no more legal effect than if it had been issued by a private individual. The writ that was issued was void, and would not support a levy. On the motion of plaintiff, said Hardwick dismissed said attachment, as is stated in the bill of exceptions. This means nothing more nor less, than that said Hardwick repudiated said attachment, as having been inadvertently and improperly issued by him, and that he would have nothing more to do with the matter.

Before this action on the part of said Hardwick, the constable, W. H. Smith, into whose hands the writ of attachment went, turned the bale of cotton, on whlch he had levied the writ, in to the hands of K. Blackmon, who claimed an interest in the cotton levied on, upon Blackmon giving him an indemnifying bond. The contention between the plaintiff and Blackmon was, as appears by the bill of exceptions, that plaintiff had rented land from Blackmon for the year 1904, at a stated rent, and made a crop on it, for which, as he alleges, he paid Blackmon, $60, which was all that he owed for rent of the land. Blackmon, on the other hand, claimed that plaintiff had not paid all his rent, but owed him more on that account, than the bale of cotton was worth. Therefore, Blackmon sold the bale of cotton and applied the proceeds, as he contends, towards the payment of the rent still owing by plaintiff to him.

Thereupon plaintiff commenced this action in trover against W. H. Smith, the constable, for the conversion of said bale of cotton. The defendant filed the plea of not guilty, and another plea, which is not set out in the record proper, nor in the bill of exceptions, which plea was, on motion of plaintiff, stricken out. Whether properly or improperly stricken, we are unable, and are not called on to adjudge, since we are not informed of the nature and character of said plea. The case was tried on the plea of the general issue, and the court gave the general charge for the plaintiff. It also instructed the jury, that the measure of plaintiff's damages...