Olmstead v. Thompson
Supreme Court of Alabama
Appeal from the City Court of Anniston. Tried before J. A. W. Smith, as special judge. This action was brought by Percy Olmstead, against O. A. Thompson and J. D. Thompson, and was commenced on the 11th January, 1888. The complaint 'claimed damages for an alleged trespass by the defendants in forcibly entering plaintiff’s dwelling-house, ejecting him and his family, and re moving their furniture.
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Appeal from the City Court of Anniston. Tried before J. A. W. Smith, as special judge. This action was brought by Percy Olmstead, against O. A. Thompson and J. D. Thompson, and was commenced on the 11th January, 1888. The complaint 'claimed damages for an alleged trespass by the defendants in forcibly entering plaintiff’s dwelling-house, ejecting him and his family, and re moving their furniture. The defendants pleaded (1) not guilty, and (2) a special plea of justification, ■which alleged that the only connection they had with the alleged wrong and injury complained of “was to be present and…
1Opinion of the CourtColeman, J.
The rule is settled in this State, and is settled by the decided preponderance of authority, that the premature issuing of an execution is voidable, and not absolutely void — -being merely an irregularity — and the process must be respected, and may be enforced, until vacated in a manner prescribed by law. It can not be collaterally assailed, even by the defendant- himself.—Steele v. Tutwiler, 68 Ala. 107; 1 Freeman on Executions, (2d Ed.) § 25.
The judgment in controversy in this case was rendered by a justice of the peace, on November 12th, 1887. The writ of restitution was issued two days…
2Cases cited5 opinions
- Nelson & Hatch v. DunnSupreme Court of Alabama · 1849
- Masterson v. MatthewsSupreme Court of Alabama · 1877
- Steele v. TutwilerSupreme Court of Alabama · 1880
- Bangs v. GrayNew York Court of Appeals · 1855
- Dennis v. SnellNew York Supreme Court · 1866
3Cited by6 opinions
- First Nat. Bank of Mobile v. BurchSupreme Court of Alabama · 1939
- Gillespie v. McCleskySupreme Court of Alabama · 1909
- Bryan v. DaySupreme Court of Alabama · 1933
- Southern Cotton Oil Co. v. HarrisSupreme Court of Alabama · 1912
- Bryan v. DaySupreme Court of Alabama · 1932
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