120 Ala. 92 | Ala. | 1897
Appellant’s intestate, M. A. West, sued to recover damages for a trespass alleged to have been committed by appellee under color of his office as sheriff of Chilton county. The principal question presented -for consideration is whether, under a writ for the seizure and delivery of personal property, regular on its face and issued by competent authority to carry into effect a judgment for the recovery of said property, the sheriff is justified in séizing said property wherever and in whosesoever possession the same may be found, notwithstanding the person from whose possession it is taken may have been rightfully in possession thereof. The writ, which is set out in the special pleas justifying the seizure under legal process,, commanded the sheriff “to seize and deliver to H. C. Reynolds [the property described therein], which said property the said H. C. Reynolds recovered of G. G. West, J. B. Hill and Thos. Prestridge by the judgment of the circuit court of Chilton county, Alabama, on the 14th day of May, 1890.” The pleas averred that the property described in the writ was situated on the land described in the complaint, but that it was not the property of the plaintiff, and that in obedience to the mandare of the writ the sheriff entered upon said land and seized the property and delivered it to H. C. Reynolds, using no more force than was necessary. But it does not appear from the plea that the property described in the writ was the same as that described in the complaint, nor are any facts averred tending to show that plaintiff’s intestate was a party to the suit in which was rendered the judgment upon which said writ was issued, or had any privity with the defendants in said suit, or that his possession was the possession of said defendants, or that he came into possession while said suit was pending, or that he was not rightfully in possession thereof.
A plea of justification under legal process must set forth matter which, if proved, would constitute a full defense to the action. If the plaintiff in the action is a
The pleas, as answer to the first count of the complaint, which Alleged that the property seized was a fixture attached to the land, should also have averred facts to show that the circumstances under which it was attached to the land were such that in law, its character as personal property was not changed. Under ak writ for the seizure of personal property real property caP-iiot be seized. But this objection was not raised by the\ demurrer, and cannot, therefore, be considered court as ground for reversal.
Reversed and remanded.