Johnson v. Collier

DOWDELL, J.

The first question for our consideration in this case is whether a claim of exemption can be made to personal property levied on under execution issued upon a judgment based on a complaint for money lost on a wager. The answer to this question involves the determination of the character of the action in which the judgment Avas rendered, whether in tort or contract.- In the present instance the judgment on which the execution was issued was founded on a complaint containing a count for money had and received, etc., and a special count declaring for so much money lost by the plaintiff on a wager.

*208 The count for money had and received is unquestionably in indebitatus assumpsit and hence an action ex contractu. The special count to recover back money lost and paid on a wager on the principle stated in Motlow v. Johnson, 151 Ala, 276, 44 South. 42, wherein it was said, “It is money which the law ex equo et bono considers as belonging to the plaintiff,” is essentially of the same nature, and therefore an action ex contractu. The provisions of the Constitution and statute relating to exemptions are not confined to debts arising out of express contracts, but extend also to- such as arise out of implied contracts. This is a proposition of law too well settled to admit of any dispute. We are clearly of the opinion that Collier, the defendant in execution, could set up his claim to exemptions under the levy, and, if contested, was entitled to- a hearing on such contest as provided by the statute. It was the duty of the sheriff under the law when the claim of exemptions was made, if no contest of such exemptions was filed as provided by the statute (section 2047 of Code 1896), to discharge the levy. If a contest was filed, then it was the sheriff’s duty under the statute section 2050, Code 1896, to have returned the process and other papers to the court to which the process was returnable, accompanied with a full statement of the facts.- — Kennedy v. Smith, 99 Ala. 88, 11 South. 665.

The sheriff, in disregard of the duty imposed upon him by the statute, proceeded to sell, and did sell, the property levied on, and which was claimed as exempt. This was an abuse of process, and by such abuse of process he rendered himself a trespasser a.b initio. When the claim of exemptions was lodged with the sheriff, he had the right to look to the judgment upon which the execution was issued and to the complaint upon which the judgment was based, and it was his duty to do so, *209 to determine whether under the law on the face of the record the defendant in judgment and execution was entitled to claim exemption, but beyond this the sheriff would not be authorized to go to determine the defendant’s right to claim. We are not to be understood as deciding that the right to exemptions under execution is to be tested solely by the mere form of the action, but rather by the cause of the action as shown in the complaint. An action of debt which is an action ex contractu is a proper remedy to recover a.penalty; yet the claim of exemptions as against an execution on such a judgment could not be asserted. We understand the law to be if the cause of action, the foundation of the judgment, arises out of a tort, a claim of exemptions would not be available as against such judgment.

In the instant case the judgment was based upon a complaint which we think is ex contractu, and not ex delicto. It is true that both the plaintiff and defendant in mailing a wager on the election violated a criminal statute which subjected both to a prosecution. That, however, is not the cause of action declared on here. But for the statute which authorizes the recovery by action at law of money lost on a wager the plaintiff would have no right of action. The cause of action does not arise out of a tort. Could it be said that, when the defendant received the money voluntarily paid over to him by the plaintiff on the wager, he, the defendant, was guilty of any tortious act towards the plaintiff? We think not. The cause of action not being for penalty, nor arising out of a tort, but for money which the plaintiff paid the defendant on a void contract, and which the law says he may recover back, and which might be recovered in action for money had and received as if upon an implied promise to pay, we are unable to see why the right of claim to exemptions may not be asserted against levy *210 under a judgment in such a case. It is not disputed that the plaintiff here was in the possession of the property at the time of the levy and seizure, and it is therefore immaterial that he subsequently made a conditional contract of sale of it to Lewis. The sheriff being unable to justify under the process by reason of its abuse, he was a trespasser under the law when he seized the property. The plaintiff had the possession, and the trespass was necessarily against his possession. The case of Davis v. Young, 20 Ala. 155, is not opposed to the above views. . The facts in that case differentiate it from the present case. “It is equally well settled that when property is subject to levy, but the debtor has a right after-wards to claim and select a part or all of it as exempt and to have the same set apart for him, the officer is liable as a trespasser ab initio if he denies him this right and proceeds to sell the property notwithstanding a valid claim. Trespasses also a proper form of action to recover damages from a creditor who directs or otherwise participates in a wrongful seizure and sale of exempt property.” — 12 Am. & Eng. Ency. Law (2d Ed.) p. 252. There was evidence which tended to show, and from which the jury were authorized to find, that the officer knew that he was selling exempt property, and in disregard of the debtor’s claim- of exemptions, and also evidence tending to show that Johnson, the creditor, participated in this action of the officer.

It is not necessary to a recovery of exemplary damages that they should be specially claimed in the complaint. — Wilkinson v. Searcy, 76 Ala. 176. On the question of exemplary damages, it was said by this court in Alley v. Daniel, 75 Ala. 403: “Malice may be implied for the purpose of awarding exemplary damages if it appears that the officer sold the property when he knew that he had no right to do so.” If the evidence of the *211 plaintiff in this case is to he believed there can be no doubt under the law that the act of the- officer in selling the property was in disobedience of the imperative mandate of the statute and from which malice may be implied for the purpose of awarding exemplary damages.

But it is urged by the appellant that the officer acted under the advice of counsel, and that, if he acted in good faith under the advice of counsel, he should not be held for exemplary damages. Waiving consideration of the fact that counsel whose advice the officer relied on was also counsel for the plaintiff in execution, it appears from the record that the question of the bona fides of the officer was by the trial court fairly submitted to the jury, and there is nothing in this respect of which appellants have any reason to complain.

In the course of the trial the defendant asked the plaintiff, who- was being examined as a witness, the fo-1-loAving question: “Did you authorize Walter Martin, the bookkeeper of M. B. Johnson, to credit the judgment against you in favor of M. B. Johnson as executor of T. L. Johnson, deceased, with the surplus and pay the balance to you?” An objection by the plaintiff was sustained by the court to this question. It does not appear from the record to what surplus the question had reference. The proceeds of sale of the property in question were insufficient to satisfy the judgment on which the execution issued, and hence there could be no surplus in that instance to which any reference could be had. The trial court Avill not be put in error on appeal for sustaining an objection to a question apparently meaningless. If the question had reference to a surplus arising out of some other transaction than the sale of the property claimed as exempt, we are unable to see the relevancy of it.

*212 We find no reversible error in the record, and the judgment will therefore be affirmed.

Affirmed.

Simpson, Anderson, Mayfield, and Sayre, JJ., concur.