Chapman ex rel. Leavitt v. Smith

By the laws of Alabama, where property is taken in execution, if the'sheriff does not make the money, the plaintiff is allowed to suggest to the court that the money might have been made with due diligence, and thereupon the court is directed! to frame an issue in order to try the fact. In a suit upon a sheriff’s bond, where the plea was that this proceeding had been resorted to by the plaintiff and a verdict found for the sheriff, a replication to this plea alleging that -the property in question in that trial was not the same property mentioned in the breach assigned in the declaration, was a bad replication and demurrable. Where the sheriff pleaded that the property which he had taken in execution, was not the property of the defendant, against whom he had process, and the plaintiff demurred to this plea, the demurrer was properly overruled.

This case was brought up by writ of error from the District Court of the United States, for the Middle District of Alabama. It was a suit upon a sheriff’s bond. Alexander Smith was the sheriff, and the other defendants in error his sureties. The Leavitts were citizens of New York. It was altogether a case of special pleading. There were fourteen breaches assigned in the declaration, ten pleas, with replications arid demurrers on both sides. There were demurrers to the breaches, demurrers to the pleas, and demurrers to the replications, upon which sometimes one party obtained a judgment, and sometimes the other; and whilst all this was going on between the principals, the sureties kept up an outside war of their own, by pleading the Statute of Limitations which led to a succession of other pleadings. The record contained thirty-eight printed pages, which were occupied exclusively with pleas, replications, demurrers, joinders, and judgments upon them; and finally the case came up to this court upon two judgments upon demurrers. In giving a nanative of all this, the controversy between the plaintiffs and the sureties will be detached from the tangled history, and left out of this report. The facts of the case, upon which this system of pleading arose, were these: On the 28th of September, 1839, John W. and Rufus Leavitt obtained a judgment against Jeremiah M. Frión, in the Circuit Court of the County of Coosa, Alabama, for $3,472. On the 17th of the ensuing October, a writ of fieri facias was issued, and placed, on the 24th, in the hands of Alexander Smith, the sheriff. The return day of this writ was the fourth Monday in March, 1840, when the sheriff returned that he had levied, on the 1st February, 1840, upon dry goods, hardware, carriages, &c. On some day after this, but when the record did not show, the time of the sheriff expired, and on the 12th of September, 1840, the sheriff, by leave of the said Circuit Court, first had and obtained, altered; or amended his said return on’said writ by adding thereto the following words and figures, to wit: “ The above goods have been claimed by A. B. Dawson and Samuel Frión, assignees of J. M. Frión, defendant in execution, and claim bond given to William J. Campbell, now sheriff, and my successor in office, September 3 2,1840. “A. Smith, late Sheriff.” It is now necessary, before the next step in the narrative is referred to, to mention two statutes of Alabama, which are so minutely stated in the opinion of the court, that they may be succinctly mentioned here. One is, that if a person, other than the debtor, claims the property levied upon, he may make affidavit that he is the owner, and give bond that it shall be forthcoming, whereupon the sheriff shall suspend the sale. The other is, that the plaintiff in the suit may make a suggestion to the next court, that the money could have been made by the sheriff by the exercise of due diligence, whereupon the court shall order an issue to be framed to determine the fact whether or not due diligence was used. We now proceed with the narrative. At the April term, 1843, of the .Circuit Court for the County of Coosa, John W. and Rufus Leavitt made a suggestion, in conformity with the above statute, that the money might have been made by the sheriff, if he had used due diligence; and thereupon an issue was made up between them and the sheriff, who denied the allegation. At September term, 1847, this issue was tried and resulted in a verdict by a jury in favor of the sheriff. In October, 1848, J. W. and R. Leavitt, using the name of. the Governor, to whom the bond was given, brought this suit against the sheriff and his sureties, upon the official bond, in the District Court of the United States for the Middle District of Alabama. The declaration assigned fourteen breaches. First. That the Leavitts, at the Fall term of 1839 of the Circuit Court of Coosa County, recovered judgment against one Frión, for $3,472; that a fi. fa. issued thereon, and came to the hands of the said Smith; that although there were goods, &c., of the said Frión, out of which the said judgment might have been levied, and of which the said Smith had notice, yet he neglected and refused to levy, &c. Second. That Smith did seize certain goods, and might have levied the money by sale, and neglected to sell. Third. That he seized goods which he might have sold, but did not, and returned the levy on the goods. Fourth. That he seized, might have sold, but did not; — returned that he had levied. Afterwards, on Í2th September, 1840, amended his return by adding that the goods had been claimed, &c. Averring amended return to be false, because no claim was made before the return day of the writ.' Fifth. Samé as last, except that if averred that the amended' return was false, because no claim on oath was made. Sixth. Same as fourth, except averring that no bond was given by claimants.- Seventh. That the amended return was false, because no person claimed the property, and made oath,- and no person claimed the same and gave bond according to the statute. Eighth. Seizure, claim, duty of sheriff to prepare bond, but did not. Ninth. Seizure, claim, no bond taken, goods delivered to claimants and wasted by them. Tenth. Seizure, claim, no bond taken, goods- delivered to claimants and by them consumed añd wasted, and po part of the goods defivered to the Leavitts, nor any part of the damages paid to them. Eleventh. Same, except that it is alleged that Smith suffered goods to be wasted, &c. Twelfth. Same as last. Thirteenth. Seizure, claim, bond, and, by negligence of Smith, bond lost.- Fourteenth. Same as last, except that the bond taken was not returned. Spring Term, 1850. The defendants demurred to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches. To the 1st, 2d, and 3d breaches,. the defendants pleaded that the said Leavitts, in the' Circuit Court of Coosa County, according to the statute of Alabama, suggested the issuing of the fi. fa.; that it came to the hands of Smith to be executed; that he might by due diligence have made the money and did not; that an issue was made up whether Smith by due diligence could have made the money, &c.; that the issue was tried and •found for Smith, for whom judgment passed, ,&c. And the defendants aver, .that the writ of execution mentioned in the breaches, and that mentioned in the suggestion, were one and the same; and that the alleged neglects and defaults mentioned in both, were one and the same, and not different. ■ The plaintiff filed a joinder in the demurrer to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breadles. To the three pleas put in by the defendants to the first, second, and third breach, the plaintiff put in a replication that the defaults, in the said pleas mentioned, were not the same defaults mentioned in the breaches, The defendants demurred to this replication, and the plaintiff joined in the demurrers. At the Fall term of 1850, the court sustained the defendants’ demurrer to the 8th and 13th breaches of the plaintiff, and overruled it as to the 4th, 5th, 6th, 7th, 9th, 10th, 11th, 12th, and 14th broaches, and that the defendants have leave to plead to the last-named breaches. The demurrer of the defendants to the replication of the plaintiff to the plea of the defendants to the 1st; 2d; and 3d breaches, was. sustained. And on motion, the plaintiff had leave to amend the 8th and 13th. breaches of the declaration. December Term, 1849. TÍie demurrer of the defendants to some of the breaches, having been overruled, they now filed a plea to the 4th,. 5th, 6th, and 7th breaches. They set forth the suggestion to the court, the issue, trial, and verdict. They aver that upon that trial the truth of the amended return was brought up, and that the verdict found the amended return to be a true return; and that "this is the same as the. amended return mentioned in the breaches. And the defendant also filed pleas to the 9th, 10th, 11th, 12th, and 14th breaches, their demurrers to which had been overruled. The first plea, called the sixth in number from the beginning, set forth, that after the levy, the goods- were claimed by one A. B. Dawson, and one Samuel Frión, as assignees of J. M. Frión; that an affidavit was made by Dawson; that Dawson and Samuel Frión gave a bond; that the affidavit and bond were duly returned to court; that the suit of the Leavitts against the claimants' was put upon the docket; that'at the Fall term of 1840, the plaintiffs refused farther to- prosecute their levy; whereupon the court ordered the goods to be restored to the claimants. Seventh plea — to- same breaches, same'in substance nearly as preceding. Eight plea — nearly same. ■ Ninth. That the property taken in execution was not the property of Jeremiah M. Frión, the defendant in the suit. Tenth — not guilty of the- several breaches. The plaintiff demurred to the 4th, 6th, 7th, 8th, 9th, and 10th pleas. Spring Term, 1851. The plaintiff’s demurrer to the 4th, 8th, 9th, and 10th pleas was overruled; the demurrer to the 7th plea was sustained; the demurrer to the 6th plea, as a plea to the 9th, 10th, 11th, and 12th breaches was sustained; the demurrer to said 6th plea as a plea to the 14th breach was overruled. The plaintiff had leave to reply to the pleas, the demurrer to which was overruled; and the defendants had leave to amend the pleas, the demurrer to which was sustained. May Term, 1851. The defendants filed an amended 7th plea to the 9th, 10th, 11th, and 12th breaches in the declaration. The plea averred that before the return day of the execution, the goods were claimed by Dawsón and Frión, and an affidavit made by Dawson; that the execution and claim were returned to the court, and, a suit docketed between the Leavitts as plaintiffs, and Dawson and Frión as defendants.; that at the Fall term of 1840, the Leavitts refused to make up • an issue; that. the court thereupon ordered the goods to be restored to the claimants ; that they were accordingly restored. The plaintiffs demurred to this amended plea, which demurrer was overruled, and then the plaintiffs filed a replication. ■The replication averred that after the return day of the writ, to wit, on the second day of the term, Dawson made his affidavii that the goods were not the property of Jeremiah M. Frión, but were the property of himself and Samuel Frión; that, on that day, Dawson and Samuel Frión, together with one Graham, executed their bond to the plaintiffs in the sum of §3,479,- conditioned to pay all damages that the jury might assess against the obligors; that they also executed another bond to one William J. Campbell for a like sum with a like condition; that be- ' lore that day Smith had ceased to be. sheriff, and that Campbell was the sheriff; that the plaintiffs moved the court to dismiss the claim of Dawson and Frión, on the ground of the insufficiency of the claim-bonds, which motion vvas overruled ; that, at the Fall term a judgment of nonsuit was rendered against the plaintiffs for declining to make up an issue ; that the judgment thus rendered against them referred to the claim-bonds above ’ described and not in any claim-suit commenced by said ailida- ■ vit described in the said amended 7th plea of defendant, nor in any other or different claim-suit; that the affidavit described in said 7th amended plea was never returned to said court, either before or after the return of said writ of fieri facias; that the plaintiff’ never knew or had any notice until the year 1847, that said last-mentioned affidavit.had been made; that the said goods levied upon, as aforesaid, were delivered to the said Dawson and Samuel, by Campbell, in obedience to the said last-mentioned judgment or order of said court, wdthout this, that they were delivered to them by the said Alexander in obedience to any other judgment or order of said court; that the plaintiffs prosecuted their writ of error,to the Supreme Court of said State to reverse said lastunentioned judgment, and that the said judgment was, by said Supreme Court, at January term, 1842, reversed and remanded to said Circuit Court; that at the Fall term of said ’Circuit Court for 1842, the said claim put in as aforesaid by said Dawson and Samuel, was, by the consideration and judgment of said court, dismissed, because of the insufficiency of the. said last-mentioned claim-bonds, the said Dawson and Samuel declining and refusing to,execute other claim-bond or bonds as they were required to do by the said Circuit Court; and plaintiff avers that the said last-mentioned judgment remains • in full force, not reversed, annulled, or set aside in any way, All which the said plaintiff is ready to verify; wherefore he prays judgment, and his debt and damages by him sustained, by reason of the facts set out in said 9th, 10th, 11th, and 12th breaches, to be adjudged to him. December Term, 1851. The defendants demurred to this replication of the plaintiff’ to the seventh amended plea. The court then pronounced its final judgment, as follows: This day came the parties, by their attorneys, and thereupon came or to be heard the demurrer -of the plaintiff to the amended 7th plea of the defendants to the 9th, 10th, lltli, and 12th, breaches of the plaintiffs; and, after argument had, it seems to the court-that'the said plea is sufficient in law, &c.; it is therefore • considered by the co'ürt that the said demurrer be overruled. And thereupon the plaintiff filed his' replication to the said' amended 7th plea, and the defendants filed their demurrer to the said replication, and, after argument, it seems to the court that the said replication is in sufficient, &e.; it is therefore considered by the court that the said demurrer be ■sustained, and that the said defendants go hence without day, &c., and recover oí the said John W. and Rufus. Leavitt, the persons 'for whose use this suit is brought, their costs in this behalf expended, for which execution may issue, &c. The plaintiffs sued out a writ of . error, and brought the case up to this court. It came up upon the correctnéss of the judgment of the court below in sustaining t'he defendant’s demurrer to the replication of the plaintiff to the plea upon the 1st, 2d, and 3d breaches, and also in sustaining the demurrer of the defendants to plaintiff’s replication to the 7th amended plea.