Opinion
6 Div. 778.
January 18, 1921.
Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge.
Action by Irene Johnson against J.E. Matlock, Constable, and the American Surety Company of New York. From a judgment for plaintiff, defendants appeal. Affirmed.
The demurrers were that the count stated no cause of action against the surety, because it states the cause of action against only one of the defendants; because it states the cause of action against J.E. Matlock officially wrongfully joined with a cause of action against Matlock individually; because it does not appear that the American Surety Company committed any wrong or participated in any wrongful act or occupied any wrongful relation towards either of the parties that would make it responsible therefor.
Beddow Oberdorfer, of Birmingham, for appellants.
The complaint was insufficient, and subject to the demurrers interposed. 9 C. J. 93, 94; section 5382, form 7, Code 1907. The judgment was for a money demand and less than $50. 58 Ala. 458; 105 Ala. 588, 17 So. 182; 22 R. C. L. 496; 57 So. 1013; 142 Ala. 148, 37 So. 933; 74 So. 933; 80 So. 135; section 5355, Code 1907.
W.T. Stewart, of Birmingham, for appellee.
The suit was ex delicto and sufficient to state a cause of action. 153 Ala. 398, 44 So. 1017; 146 Ala. 483, 41 So. 423. The judgment being in tort and for $50, the court properly declined to set it aside. 114 Ala. 361, 21 So. 490; 59 Ala. 508.
This was an action by the plaintiff against a constable and the surety on his official bond for damages for the wrongful taking by the constable under color of his office of certain personal property from the possession of plaintiff.
The amended count on which the cause was tried is as follows:
"Plaintiff claims of the defendant Jesse E. Matlock, a constable in and for precinct 21, in Jefferson county, as principal, and of the American Surety Company of New York, as surety, on the official bond of said Matlock as constable, the sum of $1,000 as damage, and that heretofore, to wit, on, to wit, the 15th day of October, 1917, the said Matlock or his deputies did under color of his office as such constable wrongfully take from the possession of plaintiff and carried away the following goods: [Describing them] — of the value of $1,000, and still unlawfully detains the same from the plaintiff, to her damage in the sum of $1,000 as aforesaid."
This count states a cause of action in case both against the principal and the surety and was not subject to the grounds of demurrer assigned. Deason v. Gray, 192 Ala. 611, 69 So. 15; Id., 189 Ala. 672, 66 So. 646.
It is not necessary to set out the bond or any of its conditions. The statute prescribes these (Code 1907, § 1500), and of them we take judicial knowledge. Where this is the case, it is not necessary that the conditions be pleaded. Perryman v. City of Greenville, 51 Ala. 507.
Moreover, the record does not disclose any demurrer filed to the complaint as amended, and where this is the case the appellate court cannot review the order overruling it. Central of G. Ry. Co. v. Ashley, 160 Ala. 580, 49 So. 388.
The recovery in this case was for $50. The appellant moved the court to set aside the judgment and dismiss the suit, under section 5355 of the Code of 1907. The action was ex delicto, and therefore the motion was properly overruled. King v. Parmer, 34 Ala. 416; Haws v. Morgan, 59 Ala. 508; Morris v. Robinson, 80 Ala. 291; Couch et al. v. Davidson, 109 Ala. 313-320, 19 So. 507.
Besides, the appeal in this case is on the record, and, as the judgment would not be void even if it were in assumpsit, in the absence of a bill of exceptions showing that the court erred in not dismissing the suit, we must assume that the court had a sufficient ground for not doing so. Black v. Ryan, 194 Ala. 667, 69 So. 633.
We find no error in the record, and the judgment is affirmed.
Affirmed.