Ward v. Deadman

• Decision Date: 23 November 1899
• Citation: 124 Ala. 288,26 So. 916
• Parties: WARD ET AL. v. DEADMAN.
• Court: Alabama Supreme Court

26 So. 916

124 Ala. 288

WARD ET AL. v. DEADMAN.

Supreme Court of Alabama

November 23, 1899

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by W. N. Deadman against Thomas W. Ward and others. From a judgment for plaintiff, defendants appeal. Reversed.

This was an action of trespass against defendant, a constable, and the sureties on his official bond, to recover damages for an alleged trespass committed by the defendant, as constable, in levying an execution upon certain personal property of the plaintiff, and selling it to satisfy said execution. The substance of the complaint is sufficiently stated in the opinion. The defendants demurred to the complaint upon substantially the following grounds: (1) The complaint shows no cause of action; (2) it fails to aver any facts showing that the defendants are liable; (3) that it is shown in said complaint that the defendant Ward acted under a valid process from a court of competent jurisdiction in levying the execution; (4) "said complaint shows that at the time the said defendant Ward levied on the property of the plaintiff he was duly performing his duty as constable, and was acting under and by virtue of a valid writ of fieri facias regularly issued from a court of competent jurisdiction, which said writ disclosed on its face that it was issued on a judgment for damages, and that against such judgment and execution the law allowed the plaintiff no right to claim personal property as exempt." This demurrer was overruled. To this ruling the defendants duly excepted. The defendants pleaded the general issue and several special pleas, setting up the defense that the defendant Ward was acting under an execution regular on its face, and issued by a court of competent jurisdiction, at the time of the commission of the alleged trespass. The overruling of the demurrer constituting the only ruling of the trial court reviewed on the present appeal, it is unnecessary to set out in detail the facts of the case. From the judgment in favor of the plaintiff the defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Jere Murphy, Jr., and Grayson & Foster, for appellants.

Tancred Betts, for appellee.

TYSON J.

This is an action for damages, brought by a defendant in an execution against the constable and the sureties upon his official bond for an alleged trespass committed by the constable in levying the execution upon certain personal property of the plaintiff, and selling it to satisfy said execution. The alleged trespass is predicated upon the taking of the property, which it is alleged was exempt from levy and sale after the plaintiff had filed in the office of the judge of probate his claim of exemptions. The complaint sets out the execution in hæc verba under which the constable acted, and this indorsement thereon, "No personal property exempt from levy and sale." The inference to be drawn from the allegation of the complaint is that the execution was issued by competent authority, since it appears from the averments that it was issued by a justice of the peace, naming him, and no question is raised as to his want of authority in doing so. Furthermore, the execution is regular on its face. Being regular on its face, and issued by competent authority, the constable was bound to obey its mandates, and this he was compelled to do without reference to whether the judgment supporting it was regular or irregular. If the judgment was void, the constable could have availed himself of this as defense for not...