Thorn v. Kemp

• Decision Date: 22 June 1893
• Citation: 13 So. 749,98 Ala. 417
• Parties: THORN ET AL. v. KEMP ET AL.
• Court: Alabama Supreme Court

13 So. 749

98 Ala. 417

THORN ET AL. v. KEMP ET AL.

Supreme Court of Alabama

June 22, 1893

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

This was an action brought by A. A. Kemp and Samuel Parker against Samuel A. Brunson, constable, and Eli Thorn and others, who were sureties on Brunson's official bond. There was judgment for plaintiffs, and defendants appeal. Reversed and remanded.

The breach alleged in the complaint is that on the 29th of January, 1889, W. P. Larkin, as assignee of a mortgage executed to Joseph Touart by A. A. Kemp and Samuel Parker brought an action of detinue in a justice of the peace court and, after having given bond and made affidavit before the justice of the peace, a writ of detinue was issued by said justice, and placed in the hands of the defendant Brunson, as constable, to be levied upon certain personal property claimed to be the property of said Larkin; that the constable, on January 29, 1889, levied the writ on log cart chains, and fixtures; that the defendants in said detinue suit (plaintiffs in the present action) neglected to give bond for the replevy of the property, and that plaintiff Larkin also failed, within the time prescribed by statute, to give a replevy bond for said property; and that after said failures the defendants in said detinue suit demanded of said Brunson the return of said property, who refused to restore the said property.

The evidence of the plaintiffs and that of the defendants are in direct conflict on most of the material facts. On the part of the plaintiffs the testimony tended to show that the constable levied the writ of detinue on the cart, chains, and fixtures, and refused to surrender the same to the defendants in the detinue suit, who are the plaintiffs in this action, on the failure of the plaintiff Larkin to give a replevy bond within the time required by statute. The testimony for the defendants tended to show that the property taken by said Brunson was not levied upon under the writ of detinue, but was taken by said Brunson as the agent of W. P. Larkin, who was the assignee of Joseph Touart, of a mortgage executed to said Touart by A. A. Kemp and Samuel Parker, and that said property was taken by said Brunson as agent of Larkin, and was delivered to said Larkin before the writ of detinue came into his hands as constable, and that said Larkin sold the property at public outcry, under the provisions of said mortgage. There were many rulings of the court upon the evidence sought to be introduced, but those noticed by this court are sufficiently stated in the opinion.

The court, at the request of the plaintiffs, gave the following written charges to the jury: "(1) The court charges the jury that, though the docket in evidence may show that Brunson was allowed to amend the return on the writ, still this would not prevent the plaintiffs from introducing evidence to show whether, in point of fact, the defendant Brunson did levy on the log cart, chain, and fixtures, the subject-matter of this suit. (2) The court charges the jury that if they believe from the evidence in the case that Brunson levied under a writ of detinue on the log cart, chain, and fixtures, the subject-matter of this suit, and that Kemp and Parker neglected for five days to replevy said property, and that, after Kemp and Parker failed for five days to replevy said property, Larkin failed for five days to replevy the same, then, after the expiration of said time, it was the duty of Brunson to return the property to Kemp and Parker, and, if he failed to do so, then the defendants would be liable, and it was not necessary for Kemp and Parker to demand the property. (3) The court charges the jury that if they are reasonably satisfied from the evidence in the case that Brunson levied on the log cart, chain, and fixtures, the subject-matter of this suit, and that Kemp and Parker failed for five days thereafter to replevy the same, and that Larkin, for the succeeding five days, failed to replevy same, and that the property was not afterwards returned to Kemp and Parker by Brunson, then the plaintiffs are entitled to recover. (4) The court charges the jury that if they are reasonably satisfied from the evidence in the case that Brunson levied on the log cart, chain, and fixtures as constable under the writ of detinue, and that the said property was not replevied by Kemp and Parker or Larkin within the time required by law, and that Brunson failed to return said property to Kemp and Parker, then the plaintiffs are entitled to recover. (5) The court charges the jury that if they are reasonably satisfied from the evidence that S. A. Brunson, the constable, levied and seized the log cart and fixtures under the writ of detinue sued out by W. P. Larkin, and against plaintiffs, on the 29th day of January, 1889, and if they are satisfied that no replevy bond for the cart and fixtures was made by Larkin, the plaintiff, or Parker and Kemp, the defendants, and S. A. Brunson did not deliver the cart and fixtures to Parker and Kemp, and they thereby lost the cart and fixtures, then the plaintiffs are entitled to recover in this case the value of the cart as shown by the evidence. (6) The court charges the jury, if they are reasonably satisfied from the evidence in this case that the defendant Brunson took the cart, and when he took the log cart he had the writ, and stated he levied on the property-the log cart and fixtures-under the writ, and took possession of the log cart and fixtures under the writ, then he would be liable if the plaintiffs never after got the property back, and no forthcoming bonds were given either by the plaintiffs or Larkin."

The defendants separately excepted to the giving of each of these charges, and also separately excepted to the refusal of the court to give each of the following charges requested by them: "(1) The court charges the jury that if they believe from the evidence that Brunson made an application to the court which issued the detinue writ to amend his return, and if they further find that upon said application, and after hearing the evidence on said application, such justice allowed such application, and allowed the constable to amend said return by striking out the entry as to levy on cart and fixtures, then they must find that such return as amended speaks the facts and the truth as to such transaction. (2) The court further instructs the jury that the privilege which is given to an officer to amend his return is upon the principle that the truth of the facts ought to appear of record, and the officer, having been mistaken in regard to them, ought to be permitted to amend his return. (3) The court further charges the jury that the statements of the written record of the justice, Stoll, are in this case conclusive, and cannot be here contradicted, but should be considered by you as it appears in the writing of Justice Stoll. (4) The court further instructs the jury that if the evidence fails to reasonably satisfy you that the writ of detinue came into the hands of Brunson before he took the cart, your verdict should be for defendants. (5) The court further charges the jury that the defendants are not liable in this case, unless you are reasonably satisfied from the evidence that the writ of detinue was placed in the hands of Brunson before he took the cart, and that he did take the cart under the writ. (6) The court further charges the jury that the statements of the written record of Justice Stoll are conclusive as to what was done in the case before him, and when in said court the complaint was amended, and the log cart and chain were stricken out, the log cart and chain were no longer in said suit, and the case stood as if the suit had at first been brought without putting the log cart and chain therein. (7) The court further charges the jury that if the evidence fails to reasonably satisfy you that the writ of detinue came into the hands of Brunson before he took the cart, your verdict should be for defendants. (8) The court further charges the jury that if the plaintiffs have failed to satisfy you with reasonable certainty that defendant Brunson did not take the cart under the mortgage, your verdict should be for defendants. (9) The court further instructs the jury that if the plaintiffs have failed to show that within five days from the taking of the property Parker and Kemp failed to give bond for same, and further show that within ten days the plaintiffs failed to give bond for same, then the plaintiffs cannot recover. (10) The court further charges the jury that the presumption of the law is that the officer did his duty, and this presumption is overcome only by clear, convincing proof that he did not do his duty."

J. C. Richardson, for appellants.

Gamble & Powell, for appellees.

HARALSON J.

1. The objection to the introduction of the official bond of the constable, Samuel A. Brunson, was withdrawn by the defendants, as the record shows, and it was read without objection. After this an assignment of error cannot be predicated on its introduction.

2. The affidavit, the...