Sterling v. Colvard

• Decision Date: 03 July 1969
• Docket Number: 6 Div. 294
• Citation: 225 So.2d 790,284 Ala. 378
• Parties: M.J. STERLING et al. v. Dewey COLVARD et al.
• Court: Alabama Supreme Court

Page 790

225 So.2d 790

284 Ala. 378

M.J. STERLING et al. v. Dewey COLVARD et al.

6 Div. 294.

Supreme Court of Alabama.

July 3, 1969.

Longshore & Longshore, Birmingham, for appellants.

Dempsey Pennington, Birmingham, Roy D. McCord, J.D. Pruett, Gadsden, for appellees.

COLEMAN, Justice.

Plaintiffs sued the Sheriff of Etowah County, and the surety on his official bond, for damages allegedly sustained by plaintiffs as the result of the action of the sheriff in levying execution on and selling certain personal property of plaintiffs to satisfy a judgment rendered against plaintiffs by the Circuit Court of Etowah County. The jury returned a verdict in favor of the sheriff and the court rendered judgment in accord with the verdict. Plaintiffs appeal.

As last amended, the complaint contains five counts which are designated 1, 2, A, B, and C. Defendants pleaded the general issue in short by consent with leave, etc.

4 and 13

Plaintiffs assign for error the giving of the affirmative charge for defendants as to Count 1 of the complaint.

In Count 1, plaintiffs allege that the defendant sheriff levied execution on all plaintiffs' household furniture and goods which were in a warehouse; that said furniture and goods were exempt from levy and sale; that plaintiffs' attorney served notice on the sheriff and claimed said property as exempt; but the sheriff failed and refused to release said levy whereby plaintiffs were deprived of their household furniture and goods, all to the damage of plaintiffs.

Plaintiffs rely on § 712, Title 7, wherein the legislature has declared that no waiver of exemptions in any written instrument shall authorize the levy of execution on cooking utensils, cooking stoves, table, tableware, china, bed and bed clothing in actual use by the family, wearing apparel, and other specified items. The statute declares that " * * * any levy upon such property is absolutely void." Levens v. State, 3 Ala.App. 45, 57 So. 497; Coffman v. Folds, 216 Ala. 133, 112 So. 911.

In reply, defendants say that the instant record shows that the question, whether plaintiffs were entitled to claim the articles levied on as exempt, had been tried and determined against plaintiffs by a judgment of the Circuit Court of Etowah County rendered December 7, 1961, which date was prior to the date of the sale of which plaintiffs complain.

Defendants' Exhibit A purports to be a transcript of the proceeding and judgment relied on by defendants, wherein the instant plaintiffs claimed the property levied on as exempt, the plaintiffs in execution contested the exemption claim, and the court decided the issue against the instant plaintiffs.

The judgment rendered on the contest, and from which it does not appear that an appeal was taken, was conclusive on the instant plaintiffs as well as the plaintiffs in execution and the sheriff. Stallings v. Gilbreath, 146 Ala. 483, 41 So. 423.

§ 658 of Title 7 recites:

"If no declaration of claim of exemption has been filed in the office of the judge of probate, or if so filed, and the same is contested, no action shall lie against the officer levying the process, on the ground that the property levied on is exempt."

We are of opinion that plaintiffs' claim of exemption had been decided against plaintiffs prior to the sale and that plaintiffs cannot now recover from the sheriff, who levied the process, "on the ground that the property levied on is exempt." Accordingly, the court did not err in giving the affirmative charge for defendants as to Count 1.

10 and 11

At some time prior to the levy, the goods of plaintiffs had been stored in a warehouse. Some of the goods had been packed in cardboard cartons. In Count 2, plaintiffs charge that the sheriff sold the cartons without opening them. With respect to Count 2, the trial court charged the jury orally as follows:

"The second claim of the Plaintiffs, gentlemen, is made in Count two of the complaint, and there the Plaintiffs claim damages on the ground that the contents of cartons and boxes were sold without the cartons and boxes being opened, and that that conduct caused the contents of those cartons and boxes to be sold for less than they would have been sold for had the cartons and boxes been opened and the contents thereof exposed for inspection by bidders.

"To this claim of the Plaintiffs as stated in Count two the defense of the Defendants are two. First, the Defendants' contention, on the contrary, is that the sale of the contents of the cartons and boxes was conducted in such a manner as to constitute a reasonable and adequate exposure of the contents of the cartons and the boxes for sale; the second defense of the Defendants with reference to Plaintiffs' claim as stated in Count two of the complaint is that the Plaintiffs were present when the contents of the cartons and boxes were being offerred for sale and made no objection to the Deputy Sheriff to the way and manner in which the contents of the cartons and boxes were offerred for sale.

"With respect to Count two of the Plaintiffs' complaint and the claims stated therein, if you are reasonably satisfied by the evidence that the contents of the cartons and boxes were sold without those contents being adequately exposed for inspection and sale and that such conduct caused those contents to be sold for less than they would have sold for had those contents been adequately exposed for sale the Plaintiffs would be entitled to a verdict under Count two for the amount of the decrease in the sales price, except that if you are reasonably satisfied that the Plaintiffs were present when the contents of the cartons and boxes were being offered for sale and made no objection to the way and manner in which those contents were offerred for sale the Plaintiffs would not be entitled to recover damages under Count two." (Emphasis Supplied)

Plaintiffs excepted to the part of the charge which is emphasized above, and, in Assignment 10, plaintiffs assert that giving the emphasized portion of the charge is error.

In Counts A, B, and C of the complaint, plaintiffs charge that they were injured as a result of the manner in which the sheriff advertised the sale. Plaintiffs allege:

"Said advertisement stated 'I will proceed to sell on Monday, the 7th day of January, 1962, at the Courthouse door of Etowah County, between the legal hours of sale, the following described property of the said', and follows a description of certain personal property, said advertisement being signed by Dewey Colvard, Sheriff of Etowah County Per Tony Reynolds, Deputy. The advertisement further stated '(To be sold at Hosmer's Transfer & Storage Co.)'."

Plaintiffs contend that the goods sold for less because of two defects in the advertisement. First, the advertisement is that the sale would be on "Monday, the 7th day of January, 1962." The 7th day of January 1962, was a Sunday not a Monday, and the sale was actually held on Monday, January 8, 1962.

Second, the advertisement recites that the sale will be "at the Courthouse door" and also at "Hosmer's Transfer & Storage Co." The courthouse and Hosmer's warehouse are about five blocks apart. The sale was actually held at the warehouse.

The court charged the jury orally as follows:

"If you gentlemen from and after a consideration of the evidence in the case are reasonably satisfied that the defects in the notice caused the property to sell for less than it would have sold for if the sale had been properly advertised the Plaintiffs would be entitled to damages under Counts A, B and C for the amount of the decrease, except that if you are reasonable satisfied that the Plaintiffs at the time of the commencement of the sale knew of the defects in the notice, were present at the sale and did not object to the Deputy Sheriff proceeding with the sale on the ground of the defects in the notice, the Plaintiffs would not be entitled to a verdict under either Counts A, B or C." (Emphasis Supplied)

Plaintiffs excepted to the emphasized portion of the last quoted portion of the charge and, in Assignment 11, plaintiffs assert that giving the emphasized portion of the charge was error.

The first oral instruction to which plaintiffs excepted is to effect that plaintiffs are entitled to recover for damage resulting from the sheriff's failure to expose the contents of the cartons to the view of purchasers at the sale, but, if the plaintiffs were present at the sale and failed to make objection to the sheriff's failure to expose the contents to the view of purchasers, then plaintiffs, by their failure to so object, waived and lost their right to recover for such damage or loss. The second oral instruction excepted to is to effect that plaintiffs are entitled to recover for damage resulting from defects in the notice of sale, but, if plaintiffs knew of the defects in the notice and were present at the sale and failed to object to the sale on account of the defects in the notice, then plaintiffs, by their failure to so object, waived and lost their right to recover for such damage or loss.

"... The sales of personal property under execution should always take place, at or near the place where the property is, when sold. Such sales must result in some, if not great sacrifice of the property, unless those present desiring to buy have opportunity to see and examine the property offered for sale.--2 Freem. on Ex'ns. § 290, and authorities in note 4; Murfree, Sher. § 994; Crok.Sher. § 493; Andrews v. Keith, 34 Ala. 728; Foster v. Mabe, 4 Ala. 402, 37 Am.Dec. 749." Brock v. Berry, 132 Ala. 95, 100, 31 So. 517.

".... It was the duty of the sheriff to have advertised the time and place of sale, and to have sold at the place designated in the notice. Certainly, it was a violation of duty, to advertise to sell at a designated place, and, afterwards make the sale to another and remote place.--2 Freem.Ex' ns. §§ 290, 302; Crok.Sher. § 484." Brock v. Berry, supra.

The oral charges were correct and...