Carter Bros. & Co. v. Ellis, Thomas & Hill, 90 Ala. 138

Carter Bros. & Co. v. Ellis, Thomas & Hill

90 Ala. 138 | Ala. | 1890

McCLELLAN, J.

We are not inclined to disturb the authority of the case of Peebles v. Weir, 60 Ala. 416, as to the competency of a special constable to levy an attachment issued by a justice of the peace, and returnable to the Circuit Court, for an amount greater than the justice’s jurisdiction, and not in excess of the bond required to be given by constables. For many years — at least as far back as 1838— justices of the peace have had authority to issue attachments for sums exceeding their final jurisdiction, and make them returnable into the Circuit Court. But prior to the act of February 5, 1856 (Acts 1855-6, p. 18), there was no law authorizing a constable to levy such an attachment, as was held in Martin v. Dollar, 32 Ala. 422, in reference to a levy made by a constable in 1838. That act, which now constitutes section 2956 of the Code, authorized such levies to be made by “ the constable of the beat in which said process may issue, provided the amount shall not exceed the amount of the constable’s bond.” Many reasons may readily be conceived for confining the power thus extended to bonded officers. The duty imposed involved liability extraordinary in character and amount, as compared with that attaching to the execution of the usual process issuing out of justice’s courts, and to which the statute authorizing service by deputies (Code, § 840) applies. It is *140very clear to our minds that the legislative intent to afford parties aggrieved by the malfeasance or misfeasance of a constable, charged with this extraordinary duty, recourse upon his bond, and to allow none except the regular constable, — a bonded officer — to levy the writ, fully appears on the face of the enactment. It follows that, in our opinion, the case of Peebles v. Weir, supra, which .involved a levy by a special deputy, was properly decided; and so, also, was the case of Brinsfield v. Austin, 39 Ala. 227, though the reasoning of the learned judge who delivered the opinion in the case last named, proceeds on the unfounded assumption that a bonded constable was not authorized to levy such an attachment.

' The levy in this case, made by a special deputy, was therefore void, and the officer was a mere trespasser. The sale by the defendant to the claimants, Ellis, Thomas & Hill, after such abortive levy, and before the levy made by the sheriff, was valid; and on this view of the case alone, if not also on the ground that the first levy was abandoned, the court below properly gave the affirmative charge for the claimants.

The judgment of the Circuit Court is affirmed.