Rice v. Watts

71 Ala. 593 | Ala. | 1882

SOMERVILLE, J.

This suit is one in trespass, brought against certain creditors of the plaintiff, for wrongfully taking personal property levied on by a constable under a writ of attachment issued by one Nettles, who was a notary public and ex officio justicie of the peace. The constable, who served the process, is also sued as a trespasser and co-defendant.

The attachment papers, under authority of which the levy was made, were excluded from evidence by the court, on the assumed ground, that a notary public, who is appointed by the Governor, having authority to exercise the jurisdiction of a justice of the peace, possessed no power to issue such extraordinary process. The question was decided to the contrary in Griffin v. Appleby, 69 Ala. 409. It was there held that such an officer, within the precinct or ward for which he is appointed, may exercise the same jurisdiction, and to this end employ the same process as justices of the peace. In Vann & Waugh v. Adams, Thorne & Co., ante p. 475, we held that notaries public had no authority to issue writs of attachments returnable to a cit/y or a circuit court — this being a special statutory power conferred on justices of the peace as such, and not appertaining or being appurtenant to their ,ordinary jurisdiction.

The court erred in excluding the evidence, for which the judgment must be reversed, and the cause remanded.