Williams v. Ragan

45 So. 185 | Ala. | 1907

McCLELLAN, J.

— The paper purporting to be a bill of exceptions cannot be considered, since it was not signed by the presiding judge within the time allowed by order of the court. There is a recital, over the signature of the judge, that by an order of court the time was extended so as to include the date on which the paper was signed; but we can discover no such order in the record.

The gravamen of this action is the misfeasance of a public officer, a constable, in that he failed or refused to deliver the property to the defendant as commanded,' imperatively, by section 2049 of the Code of 1896. The failure or refusal to perform this duty was an official dereliction, for which an action lies against the officer and the sureties on his bond. The suit rests on the breached duty, not on the bond, and is, therefore, ex delicto, and not ex contractu. — Britt v. Pitts, 111 Ala. 401, 20 South. 484. And no demand for the undelivered property was essential to the maintenance of the action. —Elrod v. Hamner, 120 Ala. 469, 24 South. 882, 74 Am. St. Rep. 43. The actionable wrong was complete when the duty imposed by the statute was not performed. It was not and could not be within the province of the officer to decide whether the property or the moiety interest therein was exempt to plaintiff. His duty was fixed by the statute, and a violation of that duty cannot be justified or liability therefor modified by the fact, if so, that the property, or an undivided interest therein, was not subject to be claimed as exempt. — Elrod v. Hamner, supra.

While the plaintiff was a joint owner, with another, of the chattels seized, the misfeasance giving rise to this action cannot be treated as an element or subject of that tenancy in common. The statute imposed the duty, and, that duty being unperformed, the aggrieved party has his action, without regard to the property ownership in relation to which the statutory duty Avas breached. Hence the joinder of the other joint OAvner with the plaintiff Avas not necessary to the maintaining of the action. That the leAying officer may take possession of and hold a chattel in which the defendant in the writ had an undivided interest is Avell settled; and we apprehend that the possession and retention by the officer may be, under the statute here declaring his duty to retfirn the property to a defendant in the even!; stated, ful- '• ly justified if the interest of one of the defendants remained subject to tbe writ in his hands; but it cannot be that, where both tenants in common interpose their claim of exemptions to their respective interests therein, he can be Avarranted in retaining the property or illegally delivering it to the plaintiff in the writ. The claims of exemptions in the case at bar, the requisite bonds not being executed, severed every right of the officer to do aught but deliver the property to the plaintiff or her fellow tenant in common; and a delivery to either would have acquitted him of any Avrong in the premises. Accordingly the demurrers, reassigned to only the first count, after the amendment had been made, were properly overruled.

Many pleas Avere filed, and to these numerous demurrers Avere sustained. From what has been said above, a large number of these pleas were correctly stricken on demurrer.

Some of the remaining pleas sought the benefit of an estoppel against the plaintiff, because she undertook to enforce the collection of the bond furnished by the plaintiff in the original suit. While that bond was a good common-law obligation, it Avas not the statutory instrument on the faith of AAdiich only the officer could have delivered the property to the plaintiff in that proceeding. —Traweek v. Heard, 97 Ala. 715, 12 South. 166. Assuming, regardless of the doubt attending it, that the given obligation was enforceable by the plaintiff against the obligors, it does not appear from these pleas that a recovery AAras had by this plaintiff in the action thereon; and for this reason, if not others stated in the demurrers, the demurrers were correctly sustained. Other pleas undertook to set up, by way of estoppel, the advicp of the attorney for the defendants in the writ to the officer talcing the nonstatutor.y bond from the plaintiff in the writ. The objections that these pleas did not aArer that the action of the officer in taking the bond was induced by the advice, or that tbe attorney represented tbe defendant in giving such advice, were well taken.— McCall v. Powell, 64 Ala. 259.

Tbe subsequent determination, if so, that tbe property in question was not exempt to plaintiff, was, as stated before, dehors tbe action here, which counts on tbe breach of tbe official duty owed under tbe statute. Plea No. 3, as amended, was patently demurrable, and was properly thereon stricken. Tbe replication to plea 2y2 was but a general traverse of tbe material and fundamental allegation of plea 2and so tbe demurrers thereto were properly overruled.

There is no error in tbe record, and tbe judgment is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.