HARALSON, J.
1. Tbe objection to tbe introduction of tbe official bond of tbe constable, Samuel A. Bronson, was withdrawn by tbe defendant, as tbe record shows, and it was read without objection. After this, an assignment of error can not be predicated on its introduction.
2. Tbe affidavit, tbe detinue bond and tbe summons and complaint in the justice’s court, were competent evidence for tbe plaintiff, as their proof tended to establish the allegations of tbe complaint, and if not objectionable on other grounds, were properly allowed to be read.
Tbe objection to tbe affidavit and bond on tbe ground that copies and not tbe originals were produced, is not well taken, since tbe record shows tbe originals were read, tbe recital being, “Plaintiffs then offered in evidence tbe affidavit and bond in detinue in justice’s court.”
3. Tbe objection to tbe summons and complaint can not be sustained. Tbe bill of exceptions states, “There was evidence of tbe loss or destruction of tbe originals of said instruments, preliminary to their admission in evidence; and that they were correct copies of originals was also in evidence.” "What this evidence was we are not informed; but, if what is stated is true, tbe ruling admitting tbe copies in evidence was free from error. We are bound to presume there was sufficient evidence to sustain tbe ruling of tbe court.
4. D. M. Powell, one of plaintiff’s attorneys, testified as a witness, that tbe copies of tbe detinue, summons and complaint in tbe justice’s court, which were offered in evidence by tbe plaintiffs, were pencil copies made by him of the papers, which be received while be was attorney for Parker & Kemp, in tbe case before tbe justice, and that his recollection was that said copies were correct, copies of tbe papers be bad; that after be made copies tbe papers were used in tbe suit before J. S. Van Pelt, a justice of tbe peace, at Georgiana, and that after tbe suit be never saw them any more.
Tbe objection to tbe admission of this evidence was that it was illegal, not to its sufficiency. It was certainly legal as far as it went, in connection with other evidence, as tending to show tbe loss of tbe originals, and that tbe copies be was deposing to were correct copies. Besides, tbe bill of exceptions states that this witness gave other testimony as to the original detinue, summons and complaint without stating what it was.
5. Tbe exception on which tbe 5th assignment is based is groundless, because tbe question to tbe witness, Parker, [423]*423objected to by defendants, does not appear to have been answered; but,'if answered, tbe bill of exceptions states, immediately following tbe reservation of tbe exception, — said evidence was afterwards excluded from tbe jury.
6. There was no error in refusing to allow tbe witness, Larkin, to be examined. He was placed under tbe rule and afterwards came into tbe court-room and listened to tbe evidence. It was a matter of discretion witb tbe court to allow bim, after tbis, to testify, or not, and its ruling on tbe subject is not a subject of review.'
7. We held in Gay v. Burgess, 59 Ala. 578, that, “A sheriff who has seized property under an order in a detinue suit, by express words of tbe statute, is bound on tbe expiration of ten days from tbe seizure, if tbe plaintiff in the detinue suit fails to take it into possession by tbe execution of a forthcoming bond, to restore it to tbe possession of the defendant (Code 1886, §§ 2717 (2942), 2718 (2943); Bell v. Perryman, 42 Ala. 122), and tbat tbe duty of obedience to the order of seizure, and of restoration, in tbe event of tbe failure to execute tbe forthcoming bond, are equally imperative, and are each official. A failure to perform either duty is a misfeasance, involving tbe sheriff and bis sureties on bis official bond in liability for tbe damages the party aggrieved may sustain.”
8. Tbe docket of tbe magistrate introduced in evidence, showed tbat tbe cause was continued from tbe 11th day of February, — tbe day on which tbe summons and complaint in detinue were returnable, — until tbe 25th of February (1889), on which date tbe following entry appears on said docket: “The plaintiff amends bis complaint, by striking out one log cart and chain and one sorrel mare, and case continued until tbe next term of court.” Tbe complaint contained other personal property besides tbat stricken out.
Tbe cause, as shown from tbe entries on tbe docket, was then continued until tbe 6th April, when tbe following entry appears: “Motion to amend by striking off tbe entry as to levy on cart and fixtures, granted.” This motion does not appear to have been made by tbe constable, and since no one has the right, generally, to make a motion in a cause, except one of tbe parties, in tbe absence of anything else, we would presume the plaintiff made it. Yet, it may have been done in tbe interest of tbe constable, and tbe proof tends to show tbat fact. Tbe complaint bad been amended by tbe plaintiff, as we have seen, by striking out tbe log cart and chain from it, and there remained nothing then for tbe levy, as to them, to rest on, and tbe cause stood in court [424]*424without a complaint for, and a levy on, the property about which this suit is brought. The constable appears, so far as this present action is concerned, therefore, with no levy, as a matter of record, in the detinue cause. If the proof shows that he levied on the property, and made no return on the writ, it can not be allowed, as contended by defendant, that the plaintiff can not prove by parol evidence that the levy was in fact made. In Henley v. Rose, 76 Ala. 376, we said, “A defendant in attachment has no control over the return which the officer may make, and can not be prejudiced by his omission or neglect. The return is not conclusive as to any matters in respect to which it is silent. If a sheriff levies upon and seizes property, which he fails to mention in his return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff, in which the question of what property was actually levied on, is involved.”— Jefferson Co. Sav. Bank v. Eborn, 84 Ala. 535.
9. To recover under the complaint in this case it is necessary to sustain the averments as laid. The plaintiff must show the seizure of the property under the detinue writ, and the failure of the plaintiff in the detinue suit to give the bond, required by the statute to entitle him to the possession, and the failure of the constable to restore the property to plaintiff. In this form of action, the burden is on the plaintiff to show the breach of the condition of the constable’s bond as averred in the complaint. Failing to meet the burden, the plaintiff can not recover. It would be different, if plaintiff had sued in detinue or trover, or for a bare tress-pass. In this action, proof -of actual possession or ownership and the right of immediate possession, and the seizure of the property by the constable, would have authorized a recovery, and the burden would have rested upon the constable, to justify the seizure and retention of the property.
The defendant contends that he took peaceable possession of the property before the writ in' detinue came to his hands, for and as the agent of one Larkin, who held a valid mortgage upon it, and that he delivered it to the mortgagee. If the jury are satisfied of the truth of this contention, plaintiff has not only failed to make the necessary proof, but defendant has affirmatively shown a defense and justification. The jury must determine the disputed facts.
Free access — add to your briefcase to read the full text and ask questions with AI
HARALSON, J.
1. Tbe objection to tbe introduction of tbe official bond of tbe constable, Samuel A. Bronson, was withdrawn by tbe defendant, as tbe record shows, and it was read without objection. After this, an assignment of error can not be predicated on its introduction.
2. Tbe affidavit, tbe detinue bond and tbe summons and complaint in the justice’s court, were competent evidence for tbe plaintiff, as their proof tended to establish the allegations of tbe complaint, and if not objectionable on other grounds, were properly allowed to be read.
Tbe objection to tbe affidavit and bond on tbe ground that copies and not tbe originals were produced, is not well taken, since tbe record shows tbe originals were read, tbe recital being, “Plaintiffs then offered in evidence tbe affidavit and bond in detinue in justice’s court.”
3. Tbe objection to tbe summons and complaint can not be sustained. Tbe bill of exceptions states, “There was evidence of tbe loss or destruction of tbe originals of said instruments, preliminary to their admission in evidence; and that they were correct copies of originals was also in evidence.” "What this evidence was we are not informed; but, if what is stated is true, tbe ruling admitting tbe copies in evidence was free from error. We are bound to presume there was sufficient evidence to sustain tbe ruling of tbe court.
4. D. M. Powell, one of plaintiff’s attorneys, testified as a witness, that tbe copies of tbe detinue, summons and complaint in tbe justice’s court, which were offered in evidence by tbe plaintiffs, were pencil copies made by him of the papers, which be received while be was attorney for Parker & Kemp, in tbe case before tbe justice, and that his recollection was that said copies were correct, copies of tbe papers be bad; that after be made copies tbe papers were used in tbe suit before J. S. Van Pelt, a justice of tbe peace, at Georgiana, and that after tbe suit be never saw them any more.
Tbe objection to tbe admission of this evidence was that it was illegal, not to its sufficiency. It was certainly legal as far as it went, in connection with other evidence, as tending to show tbe loss of tbe originals, and that tbe copies be was deposing to were correct copies. Besides, tbe bill of exceptions states that this witness gave other testimony as to the original detinue, summons and complaint without stating what it was.
5. Tbe exception on which tbe 5th assignment is based is groundless, because tbe question to tbe witness, Parker, [423]*423objected to by defendants, does not appear to have been answered; but,'if answered, tbe bill of exceptions states, immediately following tbe reservation of tbe exception, — said evidence was afterwards excluded from tbe jury.
6. There was no error in refusing to allow tbe witness, Larkin, to be examined. He was placed under tbe rule and afterwards came into tbe court-room and listened to tbe evidence. It was a matter of discretion witb tbe court to allow bim, after tbis, to testify, or not, and its ruling on tbe subject is not a subject of review.'
7. We held in Gay v. Burgess, 59 Ala. 578, that, “A sheriff who has seized property under an order in a detinue suit, by express words of tbe statute, is bound on tbe expiration of ten days from tbe seizure, if tbe plaintiff in the detinue suit fails to take it into possession by tbe execution of a forthcoming bond, to restore it to tbe possession of the defendant (Code 1886, §§ 2717 (2942), 2718 (2943); Bell v. Perryman, 42 Ala. 122), and tbat tbe duty of obedience to the order of seizure, and of restoration, in tbe event of tbe failure to execute tbe forthcoming bond, are equally imperative, and are each official. A failure to perform either duty is a misfeasance, involving tbe sheriff and bis sureties on bis official bond in liability for tbe damages the party aggrieved may sustain.”
8. Tbe docket of tbe magistrate introduced in evidence, showed tbat tbe cause was continued from tbe 11th day of February, — tbe day on which tbe summons and complaint in detinue were returnable, — until tbe 25th of February (1889), on which date tbe following entry appears on said docket: “The plaintiff amends bis complaint, by striking out one log cart and chain and one sorrel mare, and case continued until tbe next term of court.” Tbe complaint contained other personal property besides tbat stricken out.
Tbe cause, as shown from tbe entries on tbe docket, was then continued until tbe 6th April, when tbe following entry appears: “Motion to amend by striking off tbe entry as to levy on cart and fixtures, granted.” This motion does not appear to have been made by tbe constable, and since no one has the right, generally, to make a motion in a cause, except one of tbe parties, in tbe absence of anything else, we would presume the plaintiff made it. Yet, it may have been done in tbe interest of tbe constable, and tbe proof tends to show tbat fact. Tbe complaint bad been amended by tbe plaintiff, as we have seen, by striking out tbe log cart and chain from it, and there remained nothing then for tbe levy, as to them, to rest on, and tbe cause stood in court [424]*424without a complaint for, and a levy on, the property about which this suit is brought. The constable appears, so far as this present action is concerned, therefore, with no levy, as a matter of record, in the detinue cause. If the proof shows that he levied on the property, and made no return on the writ, it can not be allowed, as contended by defendant, that the plaintiff can not prove by parol evidence that the levy was in fact made. In Henley v. Rose, 76 Ala. 376, we said, “A defendant in attachment has no control over the return which the officer may make, and can not be prejudiced by his omission or neglect. The return is not conclusive as to any matters in respect to which it is silent. If a sheriff levies upon and seizes property, which he fails to mention in his return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff, in which the question of what property was actually levied on, is involved.”— Jefferson Co. Sav. Bank v. Eborn, 84 Ala. 535.
9. To recover under the complaint in this case it is necessary to sustain the averments as laid. The plaintiff must show the seizure of the property under the detinue writ, and the failure of the plaintiff in the detinue suit to give the bond, required by the statute to entitle him to the possession, and the failure of the constable to restore the property to plaintiff. In this form of action, the burden is on the plaintiff to show the breach of the condition of the constable’s bond as averred in the complaint. Failing to meet the burden, the plaintiff can not recover. It would be different, if plaintiff had sued in detinue or trover, or for a bare tress-pass. In this action, proof -of actual possession or ownership and the right of immediate possession, and the seizure of the property by the constable, would have authorized a recovery, and the burden would have rested upon the constable, to justify the seizure and retention of the property.
The defendant contends that he took peaceable possession of the property before the writ in' detinue came to his hands, for and as the agent of one Larkin, who held a valid mortgage upon it, and that he delivered it to the mortgagee. If the jury are satisfied of the truth of this contention, plaintiff has not only failed to make the necessary proof, but defendant has affirmatively shown a defense and justification. The jury must determine the disputed facts. If the constable seized the property under a writ of detinue, having thus obtained possession, he would not be permitted to turn it over to the mortgagee. No man can obtain possession of property in the actual possession of another, against his will, by a breach of the peace, and then justify under a superior right or title. [425]*425Public interest will not tolerate such conduct.—Street v. Sinclair, 71 Ala. 110; Thornton v. Cockran, 51 Ala. 415.
Neither can a private person or legal officer, by the forms of law, to which every citizen must submit, obtain possession of property in the possession of another under a claim of ownership, and having used the process of the law to acquire possession, abandon the legal process and set up an independent superior title. The law will not allow its process to be abused for such purposes. And the same rule applies where possession is obtained by artifice and fraud. Any person who thus deprives another of the possession is guilty of a wrong, and must either restore the property to him from whom taken, or -answer in damages for its full value.—Gay v. Burgess, 59 Ala. supra; Ex parte Hurn, 92 Ala. 102. A different rule as to'the measure of damages applies where one obtains the peaceable possession of the property of another, under some color or claim of right, and detains it or converts it to his own use, against one who has a prior right. In the latter case, the measure of .damages is the actual damage sustained.—Wilson v. Strobach, 59 Ala. 488; Williams v. Brassell, 51 Ala. 297; Pollack v. Harmon, —Ala. —; Draper, Mathis & Co. v. Walker, Teague & Co., 98 Ala. 310. A defendant when sued for a tort under these latter conditions, may set up an outstanding title superior to the plaintiff, if he can properly connect himself with it.— Marks v. Robinson, 82 Ala. 78; Gardner v. Morrison, 12 Ala. 547; Draper, Mathis & Co. v. Walker, Teague & Co., supra; 3 Brick. Dig. p. 776, p. 5. There are some decisions apparently conflicting, but which we think may be reconciled on these principles, and which are believed to be sound. Except where exemplary damages or smart money is recoverable, the actual damage as a general rule, should measure the extent of recovery. But the law will not tolerate a violation of the public peace, or a fraudulent resort to legal process, or fraud, or artifice to get an undue advantage over one who submits to its mandates. He who thus denes and disregards the law, or obtains an advantage by fraud, can not defend, but must make full restitution.
10. Applying the foregoing principles to the charges given and refused, to which exceptions were reserved, and many of them disappear. The six given for the plaintiff, state the law correctly; and, for the same reason they were properly given, No. 9 asked by defendant was properly refused, and besides, it misplaces the burden of proof. All those asked by defendant except the 5th and 7th -were properly refused. No. 1 is abstract. The return as amended is silent, and does [426]*426not speak any thing as to the property in question, and it was competent for plaintiff to show the levy under the writ. Nos. 2 and 3 are abstract and misleading. Nos. 4 and 8, each, misplace the burden of proof. No. 6 states no reason why the plaintiff should not recover, and denies the right of plaintiff to show that the log cart and chain were in fact levied on and seized by the constable. No. 10 is misleading.
11. There was evidence tending to show, that the writ of detinue was not placed in the hands of the constable Brun-son, before he took the cart and fixtures, and that he did not take them under said writ, but under a mortgage, and that said writ came into his hands, after he took possession of said property. Under the averments of the complaint, it was incumbent on the plaintiffs to show,' as we have before stated, that the property was taken by Brunson as constable, under said writ, and detinue bonds not having been given as required by statute, was not returned to him. Whether he did or not, was a question of disputed fact, proper for the determination of the jury, and if the facts hypothesized in charges 5 and 7 were true, the plaintiffs were not entitled to recover. The refusal to give them was error, and the cause must be reversed on that account.
Beversed and remanded.