49 So. 761 | Ala. | 1909
Lead Opinion
The first question for our consideration in this case is whether a claim of exemption can be made to personal property levied on under execution issued upon a judgment based on a complaint for money lost on a wager. The answer to this question involves the determination of the character of the action in which the judgment Avas rendered, whether in tort or contract.- In the present instance the judgment on which the execution was issued was founded on a complaint containing a count for money had and received, etc., and a special count declaring for so much money lost by the plaintiff on a wager.
The sheriff, in disregard of the duty imposed upon him by the statute, proceeded to sell, and did sell, the property levied on, and which was claimed as exempt. This was an abuse of process, and by such abuse of process he rendered himself a trespasser a.b initio. When the claim of exemptions was lodged with the sheriff, he had the right to look to the judgment upon which the execution was issued and to the complaint upon which the judgment was based, and it was his duty to do so,
In the instant case the judgment was based upon a complaint which we think is ex contractu, and not ex delicto. It is true that both the plaintiff and defendant in mailing a wager on the election violated a criminal statute which subjected both to a prosecution. That, however, is not the cause of action declared on here. But for the statute which authorizes the recovery by action at law of money lost on a wager the plaintiff would have no right of action. The cause of action does not arise out of a tort. Could it be said that, when the defendant received the money voluntarily paid over to him by the plaintiff on the wager, he, the defendant, was guilty of any tortious act towards the plaintiff? We think not. The cause of action not being for penalty, nor arising out of a tort, but for money which the plaintiff paid the defendant on a void contract, and which the law says he may recover back, and which might be recovered in action for money had and received as if upon an implied promise to pay, we are unable to see why the right of claim to exemptions may not be asserted against levy
It is not necessary to a recovery of exemplary damages that they should be specially claimed in the complaint. — Wilkinson v. Searcy, 76 Ala. 176. On the question of exemplary damages, it was said by this court in Alley v. Daniel, 75 Ala. 403: “Malice may be implied for the purpose of awarding exemplary damages if it appears that the officer sold the property when he knew that he had no right to do so.” If the evidence of the
But it is urged by the appellant that the officer acted under the advice of counsel, and that, if he acted in good faith under the advice of counsel, he should not be held for exemplary damages. Waiving consideration of the fact that counsel whose advice the officer relied on was also counsel for the plaintiff in execution, it appears from the record that the question of the bona fides of the officer was by the trial court fairly submitted to the jury, and there is nothing in this respect of which appellants have any reason to complain.
In the course of the trial the defendant asked the plaintiff, who- was being examined as a witness, the fo-1-loAving question: “Did you authorize Walter Martin, the bookkeeper of M. B. Johnson, to credit the judgment against you in favor of M. B. Johnson as executor of T. L. Johnson, deceased, with the surplus and pay the balance to you?” An objection by the plaintiff was sustained by the court to this question. It does not appear from the record to what surplus the question had reference. The proceeds of sale of the property in question were insufficient to satisfy the judgment on which the execution issued, and hence there could be no surplus in that instance to which any reference could be had. The trial court Avill not be put in error on appeal for sustaining an objection to a question apparently meaningless. If the question had reference to a surplus arising out of some other transaction than the sale of the property claimed as exempt, we are unable to see the relevancy of it.
Affirmed.
Dissenting Opinion
(dissenting). The liability of the defendant in this action is controlled by the inquiry whether the winner of a wager may claim his exemption against the enforcement of the recovery thereof by the loser. In my opinion the policy of our statute denies the right. That policy is thus aptly stated by Denson, J., in Motlow v. Johnson, 145 Ala. 376, 39 South. 711. “The object of the statute avoiding gaming contracts is, besides placing the seal of the law’s condemnation on such contracts, to put the parties in statu quo as to all money won or lost.” This policy is emphasized by the provision that the recovery may be effected for the use of the loser’s wife or children or next of kin. Code 1907, § 3339. In view of the stated policy, suggested by the highest moral considerations, it seems impossible to me that the right to defeat by claim of exemptions the recovery, plainly provided for, should stand on the same footing, be treated with the same favor, as the ordinary obligation to satisfy the demands arising out of a contract, express or implied. If this favor is extended, the winner in the wager may flaunt in the face of the wife or children of the loser the sum won and which he secured by a violation of the penal statutes of the state. The form of the action, debt, cannot influence the conclusion. — Crawford v. Slaton, 133 Ala. 393, 31 South. 940, and authorities cited therein, afford a serviceable analogy, for there can be no distinction in principle between a case where the law declares the pen
This consideration is conclusive, to my mind, that my Brothers are in error. If the thing lost at a wager be a chattel, a horse for instance, and the loser institute, as he may, detinue for its recovery, the defendant (the winner) could not claim any exemption in the premises, either as to the costs incurred or against the enforcement of judgment for the alternate value if the horse was not to be had. If this is true, then we have the anomaly of one loser being defeated in the recovery of money wagered and another, whose loss was a horse, successful in his action, because of the mere difference in the character of the thing wagered. A construction leading to such contradictory results must be unsound. The statute mates no distinction. Should we by construction create one in opposition to the plain terms of the statute?