Stephens v. Head

• Decision Date: 29 October 1898
• Parties: STEPHENS v. HEAD.
• Court: Alabama Supreme Court

24 So. 738

119 Ala. 511

STEPHENS v. HEAD.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Cleburne county; John Pelham, Special Judge.

Action by John D. Head against W. A. Stephens for damages for a wrongful seizure and sale under a sheriff's levy. From a judgment for plaintiff, defendant appealed. Reversed.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: "(3) The court charges the jury that if, from the evidence, they find that the shoes levied upon in this case belong to John D. Head, and when levied upon were in the possession of Henry, and that Tomlinson was in the possession of the goods when W. J. Henry levied upon them, then they must find the issue in favor of the plaintiff, and assess his damages at what the shoes are proven to be worth." "(5) The court charges the jury that the lien of an execution only attaches and is a lien on the property of the defendant in execution, and is no lien on any property, which is in his possession or under his control, that belongs to a third person." The defendant separately excepted to the giving of each of these charges and also separately excepted to the court's refusal to give at his request the following written charges: "(2) If the jury believe from the evidence that Tomlinson was the agent of the plaintiff at the time of the levy, and was present and saw the deputy sheriff levy on the shoes, and did not give any notice to the deputy sheriff of plaintiff's claim, and that defendant never afterwards and notice of plaintiff's claim thereto until this suit was begun, then your verdict must be for defendant. (3) If the jury believe from the evidence that the defendant levied upon and took possession of the goods in controversy under an execution and sold them, without any knowledge of any claim of the plaintiff, they will find for the defendant. (4) If the jury believe from the evidence that plaintiff had actual knowledge of the levy upon the shoes by the sheriff before they were removed from said storehouse where the levy was made, and failed to give defendant any notice of his claim thereto then he is estopped to maintain this action, and you should find for the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error, among other rulings, the giving of the charges requested by the plaintiff, and...