Stallings v. Gilbreath

• Decision Date: 28 April 1906
• Citation: 41 So. 423,146 Ala. 483
• Parties: STALLINGS ET AL. v. GILBREATH.
• Court: Alabama Supreme Court

41 So. 423

146 Ala. 483

STALLINGS ET AL. v. GILBREATH.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

"To be officially reported."

Action by J. W. Gilbreath against Will Stallings and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

This was an action against Will Stallings upon his official bond as marshall and ex officio constable for damages for the wrongful levy upon goods belonging to the plaintiff. E. O McCord and J. T. Hamrick were made parties defendant as joint tort-feasors. The evidence necessary to an understanding of the opinion is sufficiently stated therein.

The defendant requested the following written charges, which were refused: "(1) The court charges the jury that if they believe the evidence they cannot find the issues against defendant McCord on the count in trespass. (2) The court charges the jury that if they believe the evidence they cannot find the issues against defendant Hamrick on the count in trespass. (3) The court charges the jury that if they believe the evidence they cannot find the issues against defendant McCord on the count in conversion. (4) The court charges the jury that if they believe the evidence they cannot find the issues against the defendant Hamrick on the count in conversion. (5) The court charges the jury that if they believe the evidence they cannot find the issues in favor of the plaintiff on the count in conversion. (6) The court charges the jury that if they believe the evidence they cannot find the issues in favor of the plaintiff on the count in trespass. (7) The court charges the jury that, unless they are convinced to a reasonable certainty that all of the defendants and each of them are guilty of the wrong complained of, they must find the issues in favor of the defendants. (8) The court charges the jury that before they can, under the evidence, find the issues in favor of the plaintiff, they must be satisfied to a reasonable certainty that the defendants are jointly liable for the wrongs complained of in each count in the complaint. (9) The court charges the jury that if they find, under the evidence, that either or any of the defendants are not guilty of the wrong complained of, they must find the issues in favor of the defendants. (10) The court charges the jury that before they can, under the evidence, find a joint verdict in favor of the plaintiff and against the defendants, they must be reasonably satisfied that the wrongs complained of were jointly committed."

The plaintiff requested the following written charges, which were given: "(1) The court charges that the law presumes that a person in possession of property claiming is as his own is its owner, and any one who as serts the contrary must prove it by evidence which convinces the jury to a reasonable certainty. (2) If the property sued for was the property of the plaintiff, then the sale of the property after the filing of the claim of exemptions before the trial of the exemption claim would be conversion of the property by the officer and by all the others who aided, assisted, or encouraged the officer in making the sale. (3) The court charges the jury that if Biddle loaned Gilbreath $50, with the understanding that Gilbreath should pay him one-half of the profits in place of interest, then this did not constitute a partnership, and in that event your verdict must be for the plaintiff, and his damages are the value of the property sued for, with interest down to the time of the trial. (4) The court charges the jury that, if Hamrick instructed Stallings to sell the property after the filing of the claim of exemptions, then he was acting outside the duties of his office as justice of the peace, and, if the property sued for was the property of the plaintiff, then your verdict must be for the plaintiff against Mr. Hamrick. (5) The court charges the jury that, unless the defendants have proven to a reasonable certainty that W. S. Biddle was a partner with plaintiff, then you must find for the plaintiff. (6) If Stallings wrongfully converted the property sued for, then Hamrick would be equally liable if, when the replevy bond was given, he said to Stallings, 'Now you got a bond, so go ahead and sell the goods,' or words to that effect; and if, influenced thereby, Stallings went ahead and converted the plaintiff's property by selling the same, then your verdict should be against Hamrick also. (7) The court charges the jury that if Gilbreath was in possession of the property sued for, claiming it as his own, at the time of the levy this is prima facie proof of his...