52 So. 328 | Ala. | 1910
The Southern Hardware & Supply Company instituted in the law and equity court of Mobile this action of detinue to recover $5,620 of United States currency against Frank Cazalas as sheriff of Mobile county. The sheriff had come into possession of the currency as the result of obedience to the mandate of a search warrant issued out of the inferior criminal court of Mobile county on qp affidavit made by Hard-away Young, wherein it was charged that Lillie B. Les
On the state of fact in this record these conclusions cannot be escaped: That Hardaway Young, the president of the appellant, as the result of duress of an aggravated- character, signed an order whereby, in the usual course of conduct of the appellant’s business, another officer of appellant issued checks, aggregating the sum represented by the currency sued for, to Lillie B. Lester, which checks were drawn on banks in the city of Mobile and against the accounts of the appellant therewith, and that Lillie B. Lester secured on these checks or on the cashier’s checks issued in response to. those checks from these banks the identical .money sought to be recovered in this action. These conclusions of fact are not the subject of serious controversy between counsel on this appeal. Indeed, as we understand the contention of counsel for appellee, both here and below, it is that, aside from the matter of exclusive-
The issuance of the checks in question was the immediate result of the order signed by Young. The evidence before us leaves no room to doubt that he cop
So the result of this point is that the banks (debtors) have satisfied pro tanto their indebtedness to the general depositor, their creditor, and hence the sums so paid on the checks were not, after delivery thereof to
The necessary consequence of the winnowing process before essayed is that the contest is narrowed to the inquiry, not which of the two, appellant or appellee, has the better right to the money involved, for in detinue, where plaintiff’s sole reliance is title, comparative right, as between the parties to the action, to the possession, is not always, (if ever, we may interpolate, as a query) the test of recovery vel non, since a defendant may prevail, as is here asserted, because title is outstanding in a third person, but the inquiry is: Did the plaintiff at the commencement of this action have such title as authorized a recovery in detinue, the essential being title to, general or special, and the right to immediate possession of, the subject-matter claimed? By the application of the rule of exclusion we think it must be affirmed that plaintiff had such title, and, following it, the right to immediate possession.
There can be no questioning on this record that the currency here sued for was the identical money delivered by the banks to Mrs. Lester. Nor can there be two opinions on the right of one wrongfully deprived of the possession of his property to recover it, in specie, in an action • of detinue, where it can be identified. To all things, real or personal, once subjected to ownership, title there is and must be. In the absence of a taker on
Upon what appears to us sound reason we have excluded the hanks from any right or title (and there is no semblance of circumstance, even, that the banks were or are claiming any right or title to the money, having, respectively, charged the several sums against' the accounts of plaintiff with them, respectively), to the currency in suit. So that in final analysis the point of inquiry is: Which, appellant or appellee, had at the inception of this suit the legal title to the currency? One or the other, and one other, must have then been the repository of the title. Was the appellee? If she was not, then appellant was the repository of the legal title to this currency. The banks, to repeat, are not now factors in the equation. As between them and the plaintiff, there is no contest, if, indeed, there could be, no negligence on their part in honoring the checks being shown. But this conclusion cannot avail appellee whose participation in a wrongful act made her the receptacle of funds to which in law she was not entitled. If she could successfully claim even a measure of title to funds so received by her, on the ground that the creditor’s debtor honored a check written and payable to her as the result of a wrongful act of which she knew, and in which she, at least, acquiesced, we would person
Out of such wrongful acts no title against the wronged could possibly vest. Having no place with the wrongdoer, the title must have been with the wronged. The medium, the banks, through which the wrongdoer secured the funds, passed out of the contest between plaintiff and defendant, and that there was an innocent medium cannot as between these parties create a status of title that could not have existed had these funds been innocently paid in cash from the till of the plaintiff on the order of physical fear produced by a. drawn weapon. The plaintiff had, when this suit was instituted, the requisite title and right to the immediate possession of the identical currency to maintain detinue. Code, § 7770 provides: “When the property is taken under the warrant and delivered to the magistrate, he must, if it was stolen or embezzled, cause it to he delivered to the owner, on satisfactory proof of his title. * * *” While, on the trial below, the defendant offered no evidence, it will not be assumed that, had the magistrate entered upon the inquiry whether the money had been stolen or ■embezzled, the defendant would have shown on her behalf that such was the case. Unless it was so established, the magistrate had no jurisdiction under the quoted phase of the statute (section 7770) to determine title.
If it should be assumed that the magistrate’s jurisdiction under the authority of section 7770 to determine the title to the currency in question was equal and concurrent with that of the law and equity court to do so, this record presents a case where the plaintiff abandoned the first tribunal for the second, and, in proper order, the defendant, without objecting to the latterly assumed jurisdiction, appeared and contested the plaintiff’s right to the property involved. It may be debatable whether the defendant under such circumstances can question .the. jurisdiction of the latter court. It is unnecessary to now decide the matter.
When the substituted defendant came into the litigation and propounded her claim to the currency, the proceeding became a civil cause between plaintiff and (substituted) defendant.—Sullivan v. Robinson, 39
Our conclusion, then, is that the court erred in excluding on defendant’s motion all the evidence, and, in consequence, in affirmatively instructing the jury to find for the defendant (claimant).
The judgment is reversed and the cause is remanded.
Reversed and remanded.