Cordaman v. Malone

| Ala. | Dec 15, 1879

STONE, J.

^-Propertv levied on under attachment is thereby placed under a lien, which is perfected, and made available, when the attachment suit ends in a judgment for the plaintiff. Pending the suit, the defendant, or even a stranger, may replevy the property, and take it out of the actual custody of the sheriff. This, however, is a mere inexpensive mode of preserving the property until it is wanted for the payment of the judgment that may be rendered. Till the bond is forfeited, the property is in the custody of the law, and the lien is neither destroyed nor impaired. — Code of 1876, §§ 3280, 3289, 3291, 3325, 3326; McRae & Augustine v. McLean, 3 Port., 138" court="Ala." date_filed="1836-01-15" href="https://app.midpage.ai/document/mrae-v-mlean-6529081?utm_source=webapp" opinion_id="6529081">3 Porter, 138; Rives v. Wilborne, 6 Ala. 45" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/rives-v-wilborne-6502098?utm_source=webapp" opinion_id="6502098">6 Ala. 45; Lusk v. Ramsay, 3 Munf. 417; 1 Brick. Dig. 162.

Under these well-settled principles, the averments of the petition in this case clearly lead to the following conclusions : First: That by the prior levy of Knox & Malone's attachment on the cotton, they acquired a lien, which was made effectual by the judgment they afterwards recovered; and by virtue of their prior levy, they acquired a right to have the cotton sold, and to enjoy the proceeds, paramount to the' claim asserted by Coleman & Wiley. Second: After the cotton was replevied, the sheriff had no authority to seize and remove the cotton under a junior attachment, because it was in the custody of the law. — Kemp & Buckey v. Porter, 7 Ala. 138. When the succeeding sheriff seized the cotton, under the junior attachment, it was the clear right of the sureties in the replevin bond to interpose a claim to the cotton, and to have a trial of the right under the statute. — Code of 1876, §§3311, 3290. Third: The claimants (sureties in the replevin bond) could have compelled the sheriff, by mandamus, to receive and file the affidavit and claim-bond, if legally sufficient, and to have desisted from further proceedings under his said levy, until the claim suit was disposed of. In the mean time, the claimant would, by force of such claim, be entitled to the possession and custody of the property. The return of the attachment, before the affidavit and claim-bond were presented, did not justify the sheriff in refusing to recognize the claim.

It will thus be seen that, according to the averments of the petition, the proceedings by which Coleman & Wiley obtained control of the cotton and its proceeds, were grossly irregular, and without any warrant of law. The case went off in the court below on demurrer sustained to the petition. This was an admission that all its material averments were true. Taking them as true, Knox & Malone were the landlords of Barr, and sued out their attachment for rent and advances sworn to be due, and had it levied in October on cotton grown on the rented premises. Soon afterwards, and in October, the cotton was replevied, Cordaman and Wood becoming sureties on the replevin bond. The attachment of Coleman & Wiley was issued in December, and was levied on the same cotton. Cordaman made the proper affidavit of claim, and tendered it and a claim-bond to the sheriff Avho had made the second levy; but the sheriff refused to receive them, saying he had returned the attachment papers to court. Failing to have his claim entertained, the claimant avers that the sheriff was notified that the cotton was the same which had been seized and replevied under the first attachment; and the sheriff was then requested to retain the cotton under the lien of the first attachment. The sheriff, in disregard of this knowledge and request, permitted Coleman & Wiley to take possession of the cotton,- and remove and sell it. Coleman & Wiley thereupon dismissed their attachment in vacation; but, at the Spring term afterwards, Knox & Malone reduced the claim in their attachment suit to judgment. The cotton attached not being delivered to the ■sheriff within thirty days after the judgment, the sheriff indorsed the replevin bond forfeited, and execution was thereupon issued against Barr and his sureties on the replevin bond. The object of the present proceeding is to supersede and quash that execution.

In McRae & Augustin v. McLean, 3 Port., 138" court="Ala." date_filed="1836-01-15" href="https://app.midpage.ai/document/mrae-v-mlean-6529081?utm_source=webapp" opinion_id="6529081">3 Porter, 138, the questions presented and decided are not distinguishable from those raised in this record. It was ruled in that case, that the sureties in the replevin bond were released by the failure of the sheriff, when requested by the sureties, to retain the property and apply it, or its proceeds, to the first attachment. The case was well considered, and it has stood without assault, so far as we can learn, to the present time. It was quoted without dissent in Rives v. Wilborne, 6 Ala. 45" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/rives-v-wilborne-6502098?utm_source=webapp" opinion_id="6502098">6 Ala. 45. See, also, Dunlap v. Clements, 18 Ala. 778" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/dunlap-v-clements-6504454?utm_source=webapp" opinion_id="6504454">18 Ala. 778; Hagan v. Lucas, 10 Peters, 400; Lusk v. Ramsay, 3 Munf. 417. We are unwilling to depart from that case, which has stood as a guide for so many years. Stare decisis.

We are aware that, in this ruling, a seeming hardship is cast on Knox & Malone, without perceptible fault on their part. If the averments of the petition be true, they have recourse on the sheriff, for permitting the cotton to be delivered to Coleman & Wiley, and carried from the State ; and certainly Coleman & Wiley have no right to the proceeds, as against Knox & Malone. Possibly, an action would lie for money had and received against them. In any point of view, taking the facts before us as a guide, the sheriff is without excuse. If, under the facts averred, Cordaman and Wood had been adjudged to pay for the cotton not delivered on their bond, the sheriff would have been liable to them, in a proceeding analogous to an action on the case, for the injury his unauthorized act inflicted on them; and this liability would probably extend to and embrace all persons who received the profits of his wrong, or knowingly aided him in their diversion from Knox & Malone’s rightful, paramount claim.

The Circuit Court erred in sustaining the demurrer to the petition for supersedeas.

Reversed and remanded.