STAUNTON vs. SIMMONS & SIMMONS

STAUNTON vs. SIMMONS & SIMMONS. 1. On a motion to set aside a sale made under execution by a constable, to which tbe purchaser at the sale and the constable arc made defendants, it is not a good plea that the plaintiff in the motion had brought an action of trespass in the Circuit Court against the constable, for levying on and selling the property, and had recovered a judgment against him. Error to tbe Circuit Court of Monroe. Tried before tbe Hon. L. Gibbons.. It appears that two executions bad been issued against Staunton by a justice of tbe peace, which bad been levied on a horse by John A. Simmons, a constable. Tbe horse was sold at public sale, and was purchased by Robertas Simmons. Staunton afterwards moved tbe justice to set aside tbe sale, on tbe ground that one of tbe executions bad been quashed, and tbe other paid, before tbe horse was sold by tbe constable. Tbe motion was beard by tbe justice, but be decided against it, and refused to set aside tbe sale. Tbe plaintiff in tbe motion took an appeal to tbe Circuit Court, and in that court tbe constable and tbe purchaser, who alone were made parties to tbe motion, alleged, by way of plea to tbe motion, that tbe plaintiff bad brought an action of tresnass in tbe Circuit Court of Monroe, against John A. Simmons, the constable, for levying on and selling the horse, and had recovered a judgment of forty dollars damages; but it did not appear that this judgment had been satisfied. To this plea the plaintiff demurred, but his demurrer was overruled, and the plaintiff refused to plead over; whereupon judgment was rendered against him, and he now brings the case to this court by writ of error. CummiNGS, for plaintiff in error. Toerbt, contra. [MAJORITY — DAEG-AN, C. J.] DAEG-AN, C. J. We cannot perceive what influence the judgment recovered in the Circuit Court against the constable, could have upon the motion which was made by the plaintiff, to have the sale set aside. We think it was wholly an immaterial matter, and the motion should have been heard and determined in the same manner that it would have been, had no such recovery been had. It is,- however, argued that this recovery' is a bar to any other suit that may be brought to recover the horse or its value. It will be, however, time enough to decide that question, when the plaintiff brings another action. But if that recovery was pleaded in bar to an action of trover, not brought against the same party against whom the judgment in trespass was recovered, it is probable that the recovery alone, without a satisfaction, would form no bar, (see Spivy v. Morris, 18 Ala. 254; Blann v. Crocheron, decided at the present term). It is not, however, necessary to decide that question before it is raised, and it cannot be raised, in our opinion, upon this motion. The court below should have decided the motion to set aside the sale upon its own merits, without regard to the judgment that had been recovered against the constable. The matter alleged by way of plea formed no bar to the motion; and the judgment must be reversed, and the cause remanded.