Cheek v. Odom

SAMFORD, J. The appellee moves the court to strike the bill of exceptions on the ground that the same does not comply with circuit court rule 32 (Code 1907, p. 1526). It is pointed out in brief of counsel that the bill of exceptions appearing in the record contains 17 pages of colloquy between the court and attorneys engaged in the trial, interspersed here and there with questions and answers to Cheek, a party defendant and then being examined as a witness. The contention of appellant is, by exceptions taken and motion for new trial, that the attitude and demeanor of th'e trial judge was such toward the witness Cheek, he being a party to the suit, as to prejudice the jury against the defendant and his codefendants. For this purpose the colloquy between the judge and the attorneys, as well as the questions to and answers of the witness Cheek are all pertinent to questions involved in this appeal. The motion to strike is overruled. Count A of the complaint states a cause of action in trespass, following No. 23, section 5382, Code of 1907, and is not subject to any of the grounds of demurrer assigned.1 Miller-Brent Lumber Co. v. Lunday, 175 Ala. 160, 57 South. 722. If, following the claim for trespass, the plaintiff alleges damages to which he is not entitled under a count in trespass, such claim may be reached by motion to strike, objections to evidence, and by written charges, but not by demurrer. 10 Mich. Dig. 1040, par. 106. The defendants in this case were all joined and sued as joint trespassers, and there is nothing in the complaint, which is in Code form, to indicate, that some were sued *34 in trespass and some in an action on the case. ■Such recovery, therefore, that was had must have proceeded and, been based either upon an actual trespass or that such trespass as was committed was aided and abetted by the others. The defendant Cheek is properly suable because he made the indemnifying bond to induce the levy. Lienkauf v. Morris, 66 Ala. 406. Nelson is properly included for, according to plaintiff’s evidence, he was present and assisting in the illegal act. James was the officer making the levy, and Carlisle was the constable in chief of James, the deputy, and was constructively present and jointly responsible for the torts of his deputy committed while in discharge of his official duty. This last proposition is clearly stated by Head, J., in So. Bell Tel. Co. v. Francis, 109 Ala. 225, 233, 19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930. It is insisted that James and Carlisle, who were constables and making the levy as such, are entitled to the affirmative charge because of the fact that plaintiff interposed a claim bond under the statute and'upon a hearing was awarded the property. Unless the above-named defendants are protected by Code 1907, § 6049, the interposition of a claim bond and a recovery by the claimant of the property on the trial of the right of property would not bar a suit and recovery for a trespass in making the levy. Lenoir’s Adm’r v. Wilson, 36 Ala. 600. But does section 6049 as it now appears in the Code of 1907 apply to constables selected under sections 3324 et seq. of the Code of 1907? In Clay’s Digest, p. 214, par. 68, it was provided that a claim bond granted immunity from all damages to “the sheriff or other officer making the levy.” In construing this section, as being in pari materia with sections preceding it, Collier, C. J., used the language above quoted as being the law, and, while the decision of Collier, C. J., does not construe the statute with reference specially to constables, the opinion does carry the language quoted, which is broad enough to include all or any officer having authority to execute the writ. Towns & O’Brien v. Alford & Butler, 2 Ala. 378. This opinion was rendered at the November term, 1841. At some later date the statute as it appears in the Code of 1852, § 2594, was enacted, limiting the immunity, in cases provided to sheriffs. The language of the statute does not include constables, and only by a construction foreign to its language could it be made to do so. Furthermore, we are of the opinion that the action of the legislative» body in changing the language of the statute so as to exclude all officers other than sheriffs, after the decision in the Towns & O’Brien Case, supra, clearly evidences the legislative intent to limit the immunity granted1 to those officers who, by reason of tbe dignity and importance of their, offices and the manner of their selection, would more likely act with wisdom and discretion in executing writs where the sacred rights of the citizen are involved. The converse of the foregoing proposition has. been aptly stated by Thomas, J., in Christian v. Meigs, 210 Ala. 5, 96 South. 318. Where the legislative intent can be ascertained, it is the duty of the courts to give effect to statutes as they are and not as they might, or ought, to be. Charges 2 and 3 were properly refused. A sufficient answer to the contention of appellant that the court erred in. refusing to give as requested' charges 12 and 11 is: The plaintiff is an infant, and, as to such, the doctrine of estoppel because of a failure to declare the truth and assert her rights based thereon at the time of. the levy does not apply in this case. 14 R. C. L. p. 232, note 18; Gillespie v. Nabors, 59 Ala. 441, 31 Am. Rep. 20. There are exceptions to this rule, but the instant case is not so classed. ■ Charge 18 was fully covered by the court in his general charge to the jury. Charge 6 was properly refused. The title to the property was not necessarily involved. The action of trespass is based on an injury to the possession. Moreover, the charge' was abstract. The plaintiff' would have been entitled to affirmative instructions that the property was hers if the question had been involved. There are two charges refused to defendant, not numbered. These charges were properly refused. The rule which authorizes the rejection of the testimony of a witness is stated in Leonard v. State,. 18 Ala. App. 427, 93 South. 59,» and in many other adjudicated cases. We will not extend the rule. Charge 8 is bad for several reasons; a sufficient reason being that there is no evidence of subtenancy. The judgment appealed from was rendered February 28, 1923, and on May 26,1923, a bill of exceptions was presented to the trial judge and was by him signed on August 24, 1923. Following this motions were made by each defendant asking that the judgment be set aside and for a new trial. These motions were heard and denied on May 12,1923, and exceptions reserved. These facts are shown by a separate bill of exceptions presented to the trial judge on August 15, 1923. 'The motions for new trial were not incorporated in the first bill of exceptions, nor is there exception therein reserved. The appeal in this case is from the original judgment, and the second bill of exceptions, having been presented to the trial judge more than 90 days from the judgment, cannot be considered on this appeal. General Ordnance Co. v. Bowen, 209 Ala. 574, 96 South. 753. Had the motions for new trial been included in the first bill of exceptions and exceptions to the rulings of the court thereon shown, such exceptions could have been considered, in connection with the other rulings of the. court on the trial. Dees v. Lindsey Mill Co., 210 Ala. 183, 97 South. 647. *35 There is no merit in assignment of error No. 14, no exception appearing in the bill of exceptions. We cannot pass upon the excessive amount of the verdict. As we have seen, no exception on the motion for new trial appears in the first bill of exceptions and no appeal having been taken from the judgment overruling the motions. There being no error, the judgment must be affirmed. Affirmed.