Brock v. Young

PELHAM, J. Twice before this case has received consideration on appeal (Ryan, et al. v. Young, 147 Ala. 660, 41 South. 954; Young v. Brock, et al., 164 Ala. 288, 51 South. 315), and the facts do not seem to be materially different as presented on this appeal from the occasions when the case was heretofore reviewed, with the exception that on the last trial in the court below the plaintiff (appellee) introduced evidence going to prove that Cross made a sale of the goods to the plaintiff at the time he surrendered them to her, and that this sale was in full payment, satisfaction, and discharge of the debt and mortgage. It is the appellant’s contention that no sale Avas had, but that the plaintiff took possession of and held the goods under the power contained in the mortgage. There is evidence showing that the plaintiff, after she took possession of the goods, proceeded to advertise and undertook to sell them under the poAver of her mortgage. There is also other evidence affording an inference that there was no sale of the goods by Cross to the plaintiff, but that she took and held them under the mortgage. The evidence, in short, on this point is in conflict. The evidence is also in conflict as to whether Cross attorned to Brock and whether the latter had a landlord’s lien on the goods at the time he attached, and there is still another conflict in the evidence with respect to whether or not the goods exceeded $1,000 in value. The validity of the mortgage is no longer an open question, for it has heretofore been held to be void. — Ryan, et al. v. Young, supra; Young v. [635] Brock, et al., supra; Brock v. Berry, et al., 132 Ala. 95, 31 South. 517, 90 Am. St. Rep. 896. Considering the rights of the parties in the status they respectively occupy as related to the different phases of the conflicting evidence, and applying the former rulings in this case, we do not think the appellant’s first assignment of error, based on the court’s refusal to grant the defendant’s motion for a new trial because of. the verdict being clearly contrary to a preponderance of the evidence, is well taken. The evidence set out in the bill of exceptions, as we read it, is in serious conflict on those material phases of the case that depend entirely upon the facts to support or defeat a recovery, and the case was properly referred to the jury for a determination of these disputed questions of fact. The next proposition in sequence contended for by appellant in brief is that the court was in error in giving charge No. 7 for the plaintiff. This charge authorizes a recovery by the plaintiff, although Brock might have had a valid landlord’s lien on the goods, and notwithstanding the plaintiff’s claim of title, though bona fide, may have been constructively fraudulent and nonenforceable as to him and against his lien because of the value of the goods being unreasonably in excess of the amount of the indebtedness that plaintiff claimed was the sole consideration for the sale to her by Cross. The charge also is an instruction to the effect that the plaintiff, a stranger to the writ of attachment, can recover against the defendant (the plaintiff in attachment), due solely and alone to the fact of an excessive levy of the attachment writ. An excessive levy is but an abuse of the process, a misfeasance which could not in any event affect the plaintiff, a stranger to the suit. If she was injured by the levy of the writ of attachment, it was by virtue of the fact of a levy, and not by the abuses to [636] which the writ may have been subjected by the party levying it. If the plaintiff has a cause of action against the defendant, it was complete, in the instant of the levy. The court would not have fallen into the error of giving this charge had it observed the principle of law on this proposition, approvingly quoted from the opinion of Hartshorn v. Williams, 31 Ala. 149, on the first appeal of this case, by the Supreme Court, which we do not deem necessary to again set out. See Ryan, et al. v. Young, 147 Ala. 655, 666, 41 South. 954, also the text of Cyc. laying down the rule that the question of an excessive levy in an attachment suit can only be raised by the parties to the action. — 4 Cyc. 599. That part of the oral charge of the court to which an exception was reserved that is made the basis of the third assignment of error is erroneous for the same reason; i. e., it authorizes a recovery by the plaintiff for an abuse of the process in making an excessive levy. This portion of the oral charge is also incorrect in defining an excessive levy in that it does not include the cost attendant upon making the levy, care of goods, etc. Under the conflicting state of the evidence on the matters involved in charge 7 requested by the defendant, we think the court could not be put in error for refusing this charge, as it in effect predicates a finding for the defendant on a state of facts assuming that Brock had a landlord’s lien on the goods at the time he attached. Other propositions insisted upon do not seem to us to require discussion. For the reasons that will appear from a consideration of what we have said, the case must be again reversed. Reversed and remanded.