Stephens v. Head

SHARPE, J. Under the facts as they appeared upon the former appeal in this case it was held that by his failure to give notice of his claim to the goods seized by the defendant as sheriff, plaintiff Avas estopped to subsequently assert that claim by suit. That conclusion was based 'upon the assumption that the defendant in making the seizure was acting under a valid execution against Willoughby, in avIioso store the goods were situated. — Stephens v. Head, 119 Ala. 511. To set up an estoppel in accordance, with the opinion then rendered, Avas apparent!y the purpose of jilea 5; but that plea as first filed, and also as amended, failed to show defendant held an execution against Willoughby and was, [464] therefore, subject to the demurrers 'which the court sustained. On the last trial it .developed that the execution under which the defendant acted was exclusively for costs, and had, endorsed thereon, in the .statement of costs, “witness fees in circuit court $1.23.30,” without. any itemization of the. fees embraced in those sums, flection 1337 of the Code provides for the ascertainment by the clerk, of the sum to which each witness is entitled for attendance, etc., and for entering the result thereof upon the subpoena docket or book to be kept for that purpose. Section 1340 requires, that “upon the final disposition of any civil cause, the amount proved by the witnesses, as hereinbefore provided, must be taxed in the .bill of costs against the rightful party, setting forth the name of each witness, and the amount, allowed him,” etc. Section 1833 is in the following words: “At the foot, or on some part of the execution, the clerk must state, in intelligible words and figures, the several items composing the bill of costs, and without such copy of the bill of costs, the execution is illegal and shall not be levied.” These requirements as to witness fees were not conformed to in the endorsement on the execution in question; and, therefore, upon authority of the statutes themselves and of the decisions in Maxwell v. Pounds, 116 Ala. 551, and Marx v. Wood, 133 Ala. 533, it must lie held that the process was void. As to the sufficiency in other respects of the endorsement of costs, we decide nothing. Being void, the paper called an execution was properly excluded from the evidence. It was ineffective to justify the seizure regardless of whether the goods were owned by Willoughby, and hence it could not have assisted in erecting an estoppel under plea “5a,” the theory of which is, that in connection with plaintiff’s act in clothing Willoughby with apparent possession, his inactivity about the assertion of his claim, misled the defendant to seize and dispose of the goods as Willoughby’s. There being no question of punitive damages in the case, the void process was not admissible for the purpose of mitigating damages. The primary evidence of the character of the paper, under which defendant'acted, was the paper itself. The [465] question asketl defendant as to whether he took possession of the goods under a writ of execution, called for secondary evidence of the writ and was properly disallowed. What plaintiff may have said to Jones respecting his motives in bringing suit was immaterial as evidence. The contract between plaintiff and Willoughby whereby the goods wrere conditionally sold and the title retained by plaintiff and the notes, which, by the contract, Willoughby agreed to pay plaintiff’s mortgagee, Wellborn, wrere admissible as evidence of plaintiff’s title and right of possession in the goods. As against all persous except the mortgagee, the mortgagor is regarded as the owner of the property mortgaged, and as having, therefore, the right to maintain an action against a third person for its conversion. — Marks v. Robinson, 82 Ala. 69; Turner Coal Co. v. Glover, 101 Ala. 289; Heflin v. Slay, 98 Ala. ISO. The act of the deputy in taking the property, wras the act of the defendant as sheriff, and besides, the defendant ratified and became responsible for the taking by adopting the levy and selling the goods thereunder. Hence charge 3 was properly refused. What wre have said will, in application to the evidence, show7 that no error w7as committed in the giving or in the • refusal of requested charges. Judgment affirmed.