U.S. Rolling Stock Co. v. Clark

• Decision Date: 14 April 1892
• Parties: UNITED STATES ROLLING STOCK CO. v. CLARK ET AL.
• Court: Alabama Supreme Court

10 So. 917

95 Ala. 322

UNITED STATES ROLLING STOCK CO. v. CLARK ET AL.

Supreme Court of Alabama

April 14, 1892

Appeal from city court of Anniston; F. B. CASSADY, Judge.

Proceedings in attachment by Clark & Co. against the United States Rolling Stock Company. Settled without sale. Defendant's motion to retax costs overruled. Defendant appeals. Reversed.

J J. Willett and Tompkins & Tray, for appellant.

Caldwell & Johnston, for appellees.

WALKER J.

The attachment in this case was sued out for the sum of $12,000. The amount really due to the plaintiffs was less than $4,200. That amount was paid by the defendant to the plaintiffs before judgment. In taxing the costs the sheriff was allowed commissions on $12,000, and the circuit court refused to reduce this item, or to order the commissions to be taxed only on the amount really due and paid. The following is the provision fixing the sheriff's commissions in such a case: "When an attachment is by him levied on personal property, which is replevied, or the cause is settled without a sale, he is entitled to one half the commissions upon the amount of the demand sued for, allowed him for making money on execution, to be paid by the party paying such demand or replevying such property." Code, § 3687. The word "demand,"as used in this statute, does not mean the amount claimed or the damages laid in the attachment affidavit or in the complaint. It means what the plaintiff was entitled to require the defendant to pay. In ordinary legal usage, the words "debt" and "demand" are of kindred meaning, but the latter word is a term of much more comprehensive signification than the former. The term "debt" imports a sum of money owing upon a contract, express or implied; while the term "demand" embraces rightful claims, whether founded upon a contract, a tort, or a superior right of property. In re Denny, 2 Hill, 220; Drews v. Coles, 2 Tyrw. 510. The statute which enumerates the classes of "demands" for which attachments may issue in the first place, authorizes the issue of the writ "to enforce the collection of a debt;" next, "for any moneyed demand, the amount of which can be certainly ascertained." Code 1886, § 2929. In such connection the meaning of the words "debt" and "demand" is plain. They are used to describe certain classes of rights of action. Neither of them covers anything more than what is due to the plaintiff in attachment,-the amount which he is...