Kirksey v. Dubose
Supreme Court of Alabama
Error to tbe Circuit Court of Marengo. Tried before tbe Hon. Geo. D. Skortridge. This was an action of trespass commenced by Cicero L. Kirk-sey, against tbe sheriff of Marengo county, for levying on a stock of goods which the plaintiff claimed as trustee under a deed of trust, executed to him by one Wm. A. D. White, to secure certain creditors.
Read the full summary
Error to tbe Circuit Court of Marengo. Tried before tbe Hon. Geo. D. Skortridge. This was an action of trespass commenced by Cicero L. Kirk-sey, against tbe sheriff of Marengo county, for levying on a stock of goods which the plaintiff claimed as trustee under a deed of trust, executed to him by one Wm. A. D. White, to secure certain creditors. The original plaintiff died after the institution of the suit, which was then revived in the name of the present plaintiff, who was his administrator, and who was appointed trustee in his stead by the Circuit Court. The sheriff justified under two…
1Opinion of the CourtChilton, J.
1. It is well settled, that if a sheriff justifies under mesne process after the time appointed for its return, he must either aver its return, or show some legal excuse why it ■was not returned.—See McAden v. Gibson v. 5 Ala. 343, and the cases there cited. The two special pleas in the ease before us, contain no such averment, and the demurrers to them were improperly overruled by the court.
2. The judgment entry shows that the plaintiff demurred to the two pleas of justification, and that the demurrers were overruled; the demurrer also appears upon the record. Under these circumstances, we…
2Cases cited7 opinions
- Marshall v. BetnerSupreme Court of Alabama · 1850
- Easly v. DyeSupreme Court of Alabama · 1848
- Yarborough v. MossSupreme Court of Alabama · 1846
- Davis v. StateSupreme Court of Alabama · 1850
- Powell v. PowellSupreme Court of Alabama · 1846
2 more not listed; retrieve them via the Exa API.
3Cited by5 opinions
- Phillips v. MorrowSupreme Court of Alabama · 1924
- Womack v. BirdSupreme Court of Alabama · 1879
- Sawyer v. WareSupreme Court of Alabama · 1860
- Young v. DavisSupreme Court of Alabama · 1857
- J. W. Dowling & Co. v. BowdenSupreme Court of Florida · 1889