83 Ala. 486 | Ala. | 1887
The plaintiff, having obtained a judgment against P. Holmes, caused W. T. Helton to be summoned as garnishee, who appeared and answered, that he had some cotton in his possession belonging to the judgment debtor, but suggested that it was claimed by the defendants in the present suit. Thereupon, notice was issued to them under the statute, in response to which they appeared and propounded their claim. On the trial, judgment was rendered against the claimants, and condemning the cptton to the satisfaction of the plaintiff’s judgment. During the pendency of the claim suit, the defendants obtained from the garnishee, who is insolvent, possession of the cotton, and converted it to their own use. The sole question is, whether the plaintiff, on these facts, can maintain a special action on the case against the defendants. In Kelly v. McCaw, 29 Ala. 227, it was held that an action on the case does not lie against a party, who fraudulently and wrongfully induced the sheriff to deliver possession of personal property, on which he had levied an execution in favor of plaintiff against a third person, which such party had removed beyond the reach of the court, though the defendant in execution was insolvent. The decision rests on the principle, that by the seizure of the chattels the sheriff acquired a special property, and became liable to the plaintiff for their value, and that
Affirmed.
