Williams v. Ragan

• Decision Date: 16 July 1907
• Citation: 153 Ala. 397,45 So. 185
• Parties: WILLIAMS v. RAGAN.
• Court: Alabama Supreme Court

45 So. 185

153 Ala. 397

WILLIAMS v. RAGAN.

Supreme Court of Alabama

July 16, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Clay County Court; W. J. Pearce, Judge.

Action by Eula Ragan against A. J. Williams. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action against Williams on his official bond, setting out the bond in so many words, for the wrongful failure to deliver to Eula and Nina Ragan certain property, alleged to belong to them, which Williams, in his capacity as constable and acting under color of his office, seized under execution issued from the justice court on a judgment in favor of D. H Riddle and against Eula and Nina Ragan, after they had lodged with said constable a claim of exemptions to said property. The execution is set out in full, and it is averred that after the interposition of the claim of exemptions, D. H Riddle filed a contest thereto, and that the plaintiff here failed for five days to execute a bond for the replevy of said property, and that thereafter the said D. H. Riddle failed to make and deliver to said constable a bond as required by the statute for the possession of such property that on Riddle's failure to make said bond, and notwithstanding such failure, the constable wrongfully failed to deliver said property to plaintiff here. It is further alleged that the property levied on by said constable was the joint property of Eula Ragan and Nina Ragan, and that, at the same time that Eula Ragan lodged her claims of exemptions with said officer, Nina Ragan also lodged her claim of exemption to her undivided interest in said property with the said officer, but, notwithstanding the failure of Riddle upon filing contest and after plaintiffs' failure to give bond, to give the bond required by the statute, the said constable failed to deliver the property to either one of these plaintiffs.

Demurrers were interposed to this complaint as follows: "To the first count, because it fails to show that the said execution was levied on said property as the property of this plaintiff. (2) Because it shows that said execution was levied on the property described therein as the property of this plaintiff and one Nina Ragan, and said count fails to show or aver that the said property described therein was not delivered to Nina Ragan. (3) It shows on its face that the plaintiff was no more entitled to the possession of the property than Nina Ragan. (4) It shows that the plaintiff only had a half interest in the property described in the complaint, being the property levied on, and fails to show that plaintiff demanded of said Williams possession of said property. (5) It shows on its face that the plaintiff only owned a one-half interest in the property claimed as exempt, and fails to show or aver that the defendant, as such constable, was not authorized to deliver possession of the property levied on to the plaintiff in said execution, inasmuch as the other half of the property belonged to Nina Ragan and was levied on by said execution against her and the present plaintiff. (6) It fails to show that this plaintiff had the right to the exclusive possession of said property, or that he demanded possession jointly from the said constable to her half interest in the property before this suit was commenced. (7) It fails to show or aver that the property levied on under such execution as described in said count was exempt to this plaintiff."

These demurrers being overruled, the defendant filed the following pleas: (1 and 2) The general issue. "(3) Defendant says that the said D. H. Riddle did execute a bond for said property, a copy of which said bond is attached hereto and marked 'Exhibit A' and made a part hereof; and defendant says that in said suit B. B. Bridges was one of the attorneys for this plaintiff, who was one of the defendants in said execution, and that the defendant, A. J. Williams showed said bond to the said Bridges, and that the said Bridges advised the said Williams that the bond was all right. 'Exhibit A. Know all men by these presents, that we, D. H. Riddle and John A. Penton, and J. R. Gilbert, are held and firmly bound unto Eula Ragan in the sum of $75.00, for the payment of which, well and truly to be made and done, we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally by these presents, and we waive our exemption rights. Witness our hands and seals this 30th day of June, 1904. The condition of the above obligation is such that, whereas, the above bounden D. H. Riddle, at the suit of himself, has required A. J. Williams, constable, to levy an execution issued by J. H. Camp, justice of the peace, against Nina Ragan and Eula Ragan, levied on the following described property, to wit [here follows description of a lot of personal property]; and, whereas, the said Eula Ragan has filed her claim of exemption with the said constable, claiming an undivided half interest in all of said property as exempt to her; and, whereas, the above bounden Riddle has filed his affidavit with A. J. Williams as constable contesting said claim of exemption; and, whereas, the said Eula Ragan failed for five days after the notice of said contest was made to make bond for said property as required by law, and the above bound D. H. Riddle by making this bond has obtained possession of said property: Now, if the said Riddle is cast in the said suit, and shall then within thirty days after judgment deliver said property to said A. J. Williams, as constable, and pay all the costs and damages that may result from his detention, then this obligation will be void; otherwise, to remain in full force and effect.' (4) Defendant says that said A. J. Williams as such constable did require the said Riddle to execute a bond before said property was delivered to said Riddle, which said bond was executed by the said Riddle, with J. A. Penton and J. R. Gilbert as the sureties on the said bond of the said Riddle, and that the sureties were good and solvent, and that said bond was conditioned as required by law in the sum and penalty as required by law, a copy of which said bond is hereto attached. [ Same as Exhibit A.] (5) That the plaintiff is estopped from saying that the defendant A. J. Williams, constable, delivered the property described in the complaint to the said D, H. Riddle without said Riddle having executed a bond as required by law, in this: Said Riddle did execute a bond, with J. R. Gilbert and J. A. Penton as sureties, and obtained possession of said property by making said bond, a copy of which bond is hereto attached and marked 'Exhibit A.' And the defendant says that the plaintiff afterwards, on, to wit, the 6th day of June, 1904, brought suit on said bond before J. C. Carmichael, justice of the peace, in and for beat 4, Coosa county, Alabama, by summons and complaint, which...