124 Ala. 288 | Ala. | 1899
— This is an action for damages brought by a defendant in an execution against the constable and the sureties upon his official bond for an alleged trespass committed by the constable in levying the execution upon certain personal property of the plaintiff and selling it to satisfy said execution.
The-alleged trespass is predicated upon the taking of the property which it is alleged was exempt from levy and sale, after the plaintiff had filed in the office of the judge of probate his claim of exemptions.
Tlie complaint sets out the execution m haec verba under which the constable acted and this endorsement thereon, “No personal property exempt from levy and sale.” The inference to be drawn from the allegation of the complaint is, that the execution was issued by competent authority, since it appears from the averments that it was issued by a justice of the peace, naming him, and no question is raised as to his want of authority in doing so. Furthermore, the execution is regular on its face. Being regular on its face and issued by competent authority, the constable was bound to obey its mandates and, this he was compelled to do without reference to whether the judgment supporting it was regular or irregular. If the judgment Avas void) the constable could lucre aA'ailed himself of this, as a defense for not obeying its mandate; but in such case, the execution Avill operate to protect him in its execution. — Bender v. Graham, Minor, 269; Wilson v. Sawyer, 37 Ala. 631; Martin v. Hall, 70 Ala. 421; Clark v. Lamb, 76. Ala. 406.
In the execution of this process, the 'Constable was
The question is, was the endorsement made by the justice upon the execution,- “No personal property exempt from levy and sale,” a mandate to the constable which he was bound to obey, ,or if he did obey was he protected by it?
Section 2107 provides that “In any suit at law or in equity, in which a waiver of the right of homestead or other exemption is sought to he enforced, the fact of waiver and its extent must be averred in the complaint, petition or bill and by appropriate pleading may he controverted; and if such averment is sustained, the fact of waiver and its extent must be declared in the judgment or decree, and indorsed on the execution or other process thereon; and such waiver shall extend to the cost of the suit.”
It is evident that it was the legislative intention in requiring the endorsement of the fact of waiver and its extent upon the execution to give to the plaintiff in execution the benefit of his judgment in this respect by having the officer whose duty it is to levy the execution to do so in accordance with the provisions of the endorsement. It afforded information to the officer that as against the judgment and cost the defendant in execution was not entitled to claim as exempt the property mentioned in the endorsement, and was a command to him to disregard any claim made by the defendant in contravention of the terms of the endorsement. Such an endorsement is just as much a mandate to the constable or other officer who is chargeable with the execution of the process as any other command contained in it, and his duty to obey it as binding. His obedience .to this command is justified under the same provision of the statute which justifies his obedience to other mandates of the process which he is legally bound to execute. It is of no consequence in this case whether or not the pleading contained an averment of a waiver of exemptions of personal property by the defendant in execution or the judgment entry disclosed the fact of such Avaiver. The constable was not bound to look beyond the endorse
If the endorsement was made upon the execution without authority as between the parties or as against a purchaser of the property at a sale under it, it may be that' the defendant in execution would be allowed to show7 its. invaliditj7. It is very certain that he could have had the-endorsement stricken or quashed, upon proper motion. But so long as it was permitted to remain upon the execution it at as a command which the constable Avas bound to obey, unless the judgment Avas A7oid, and he cannot beheld to be guilty of trespass in the doing of an act Avhich he Avas compelled to do. If the judgment Avas void, and he obeyed the mandate, he is protected. The case of McDaniel v. Johnston, 110 Ala. 531, relied upon by appellee is not in conflict with the AdeAvs here expressed, and the principles there declared have no application to the question here in7olA7ed.
The demurrer to the complaint should have been sustained.
The judgment must be reversed and the cause remanded.
