IrI'KEE 17.· TRAVELERS' INS. CO.
of illegality to executions, provides that, "when the levy shall have been made, and affidavit and bond delivered to the officer as herein provided, it shall be the duty of such officer to suspend further proceedings on such execution, and return the execution, affidavit and bond to the next term of the court from which the execution issued, and it shall be the duty of said court to determine thereon at the first term thereof," etc. Now, after the sheriff had accepted the affidavits of illegality offered by the tax collector, did he have any power or authority to proceed further with the execution, and to sell the property of the surety advertised under the executions? To state this proposition seems to be to determine it. If, after the tax collector has made issue, as provided by the statutes, that no amount, or only such amount as he tenders on the execution, is due, the sheriff can proceed to sell the property of the surety, it would lead to great hardship, interminable confusion, and difficulty. The taX collector alone can tender this affidavit of illegality, and his sureties must certainly become subrogated to such rights as he acr.quires when the illegality is accepted by the sheriff. Besides, the express language of the statute is that the officer shall "suspend further proceedings on said execution, return it," etc. . It seems clear that, after the acceptance of the affidavit of illegality, the execution ceases to have vitality as an instrument to bring prvp3rty either of the principal or surety to sale. If it were otherwise, in the case of an execution wrongfully issued, and an affidavit of illegality filed by the tax collector, an i acceptel by the levying officer,and the illegality afterwards sustained by the of the court to the effect that no amount whatever was due by the tax 'collector, the sureties in the mean time, if having the available property, -could be made, by levy and sale, to pay ·the whole amount of the execUtion. The conclusion is irresistible that the act of the sheriff in selling this land after an acceptance of the illegality filed by the tax collector, and the deed made by him to Mrs. Whelchel in pursuance of that sale, were void, and that she acquired notiUe thereby. This disposes of the two grounds for relief made by the complainant, and a decree must .be -entered denying the injunction prayed for.
McKEE '11. TRAVELERS' INS.
Co. et ale
(Oircuit Oourt, N. D. Florida. December 81, 1889.)
A bill to enjoin the enforcement of a j udgment which became a lien on land a few days after the making of the contract under which complainant erected a bUilding, alien, and purchased the property on a suit to enforce the same. is demurrableJ where it does not specify the dates of 'commencing work under such coIitraot, ana of furnishing the labor and materials. !
In Equity. Bill for injunction. H. Bisbee, for complainant.
libsttt'&: 'Guhby, for dbfendarl.tinsurance .company.
PARDEE, J. Complainant brings sbill against the Rocky-Mountain News ;Printing Company, a Colorado corporation, the Travelers'InsuranceCompany, a Connecticut corporation, J. F. Welborne,and William Bird, United States marshal for the northern district of Florida. He alleges that on the. 15th day of Deeember, 1887, he entered into a written contract·with J; F; Welborne, of Orange .county, Fla., to erect a buildingan a certain lot in said county, upderwhich .contra.ct he covenanted and· agreed, to' furnish all the labor and materials of every nature and kind; to.complete said building. That thereupon, in the month of De.cemberraforesaid, he .commenced workanrl labor upon the said building on the said lot, and commenced to furnish the materials for the said building, and to construct the samejand he alleges that he .completed the building in the latter part of ,FEibruary or first part of March, 1888. He further alleges that upon the .completion of the said building the said J. F.Welborne was indebted to him for work and labor, and the materials furnished in the .cQnstruction of the building, and the work thereon, in the'sum·of 82,100; and on the 8th day of March, 1888, he filed his lieilfor the said sum of money in the office' of the clerk of the circuit oourt.ofOrange county, in accordance with the laws of the state of Florida,:prov.iding for liens for laborers,me.chanics, and material-men. That afterwards; dn. the month of April, he commenced a suit against the said J. F. Welborne in the cirouitcourt for the .county of Orange, to enfor.ce . his said lien upon the said building, and the lot on which it was located. Afterwards,such .proceedings were had in the said suit that complainant recovered a, judgment agaiHst the said Welborne in .the said action for the'sum' 6f $2,200, forwhich,on. May 29, 1888,. an execution issued from the said court in Orange cotmty; in, favor of complainant against the said lot of land and the said' Welborne, under which bliilding, so as aforesaid built by thecomplninant; was sold by the sheriff, and at the saleeomplainant became the purchaser, being the highest bidder therefor, and the said property was duly conv.eyedto complain", ant by the sheriff of said county, by proper deed of conveyance. Com", plainant further alleges that on the 7th day of June, 1886, the defendant the Rocky Mountain News Printing Company commenced an action at law against the said J. F. Welborne, in the circuit court of Orange ' suit was removed from county, in the state. qf the circuit court of Orange .county to the circuit court of the United States for the northem district of Flori<la on the 7th dayoi March, 1887, . and thereupon such further proceedings were had that the plaintiff in said last",mentioned suit,to",wit, the Rocky Mountain' N:ewsPrinting Com': paDy, recovered judgment' against the said delimdariton the 2d day of l888, for M and c()$t$of suit, taxed at 888:8'8. ' Upon the 24th 'day of 1889" execution issued on said judgment. That some time in December, 1888, or January, 1889, said Rocky Mountain News Printing Company assigned its said judgment against the said Welborne to the defendant the, Travelers' Insurance
Company, and the latter duly became the owner of the said judgment, issued thereon; and entitled to contr91, and does control, the further, that, under the direction and instructions of the Travelers' Insurance Company andl its attorneys, uefendant William Bird, marshal has levied upon and advertised for sale the said propof the said ,erty., Complainant avers he harl no actnal knowledge of the recovery of the judgment in favor of the Rocky Mountain News Printing Company, , and prays for injunction quieting title, etc. To this bill the defendant the Travelers' Insurance Company has filed a general demurrer, and, under the Florida practice, has assigned as points to he argued, that ,the bill should contain all that is essential to the, creation of a lien; the actual date of the commencement of the work should be set forth; the chluactElr of the work nirtst be shown; and the date of its completion accurately set. The counsel for complainant in his brief claims that compla.illltDt's lien for labOr and materials is not only upon the building erected, but upon the land on which it is erected, ,and g\ven by ,the generl1.llien-Iaw of Florida, (McClel. big. 721;) and byseetiohs::4 and 17 of Act, No. 67 Of the legislature of Florida for 1887. Section 4 of the act of 1887, by some oversight on Uie part of thE,llawmakers, grallts no lien at all.: It merely describes property, and 'Is in the words and figures following; , , "Section 4. A!'lY person 01' perl.>0flS who shall furnlsh any lumber, brick. :stone; Iitne, paint. hard ware; or other building material for ,the construction, -repair. or use of any building, railroad. canal, telegraph. telephone, wharf. -bridge. mill, distillery. or other manufactory, WOJik, or structure, together with the owner's interest in the lot or lands whereon such building, work, or !l,tructura stands. to the exwnt of tlIe val ueot tpe mate,l'ials furnished. whether :such materials were so.furnished to the owners ,or their agents, or to cop.tractors or subcontractors. to . . . . Section 17 of the same act only provides. for the oommencement of liens provided for in the act, and does .not refer to ,liens created by or under the Keneral lien-law. Under the general lien'-law, 'Dig. 721 i) no specific 'time seeqls to be provided for the commencement of the .lien. The lien of the defendant's judgment upon the property described .in the bill takes effect from the rendition of the judgment, January 2, 1888,-but a few days after the time in which complainant alleges 'he "made his contract with the owner and commenced, work. The Exhibit -A, filed with the bill as part thereof, shows that complainant made his first advance Jannary 5,1888,' three days after' defendants' lien attliehed. -Udder this state of the case it would seem that the complainant should ,set forth ,in his, bill the actual'dates at which he commenced, carried on, -and finighed work and labor, and the actual dates onwhich he furnishi:!d -ma.terials, in order that the ,Court lnay determine if any lien resulted therefrom" andi if there. cUd, the rank of such lien, in comparison with :that of resulting from the judgment rendered in this court. :In shortj-the complainant's bill does not appear to be sufficiently spebe sustained. -cific and -See Dan:iellj,(lh. ,Pr. 369et seq.';
«(}trcultt Court, N.D.IZlf.notB. February 8,1890.)
AOTlONs-J'OINDER-MALIOIOUS PROSEOUTION AND FALSE IMPRISONMENT. Under Rev. St. Ill. o. 110, § 22, abolishing the distinotion between tbe
forms of action of trespass and case, an action for false imprisonment can be joined with an aotion for malicious proseoution.
ants demur to the declaration, setting up that they prayed and obtained oyer of the record of judgment of acquittal set out in the declaration, and that suoh record sbowsthat tl>e aoq.1JUit.tal was ndt. On the merits, but on a plea on.. limitation, the oourt cannot consider what purports to 1:Ie ajcopyof the record of acquittal set out in the . if the reoord in the c,ase at bar does not. show the,t. oyer was prayed and granted. ' .
.8. SAMd-O-O'rn OF REoORD.
In an aotioir for false imprisonment 8ndmalioious prosecution, where the defend.
In nllI1-0is oyer oannot be d!!manded of a record.
At law. Demurrer to narr. ActionJ)y Oarl A. Nybladh"l;l.gainst C. J. E. Herterius et al. for maliciousprosecution and false iQ1prisonment. ;W. F. S. plaintiff. Williams, Lawre:nce Bancroft, for defendants·
. BLODGE'fT, J. The in this case contains three counts: (1) Fot' malioious prosecution of plain,tiffj (2) for false imprisonment of plaintiff; (3)for malicious prosecution,---to all which plliintiff demurs generally. . . ' ' The fir8t'point of demurrer'ihsisted on by defendants' is that the declaration is bad for misjoinder of causes of action, it being contended that an action for false imprisonment cannot be joined with an action formaliciousprosecution. Under the common law, trespass was the usual remedy for false imprisonment, and case the remedy for malicious prosecution,and counts in these two forms of action could not be joined. But the statute of Illinois (chapter 110, § 22) abolishes the distinction betweeli two forms ofactiQn, and the supreme court of this state has held that these two forms ofaction may be joined in the same suit. Krug v. Ward,77Dl. 603; Barker v. Koozier, 80m. 205. Second. Defendants having prayed and obtained, as they say in their demurrer, oyer of the record of judgment of acquittal set out in the declaration, argue from such record ,that such judgment of acquittal was .not had upon, the merits, but upon! ll. plea of the Illinois statute of limitations.. As the record in this case does not show that oyer WIlS prayed, and granted by the court, what pUilports to be a copy ot the record referred to:ili the declaration,set out in the demurrer, cannot be so considered. ,The, court cannot'say that what purports to be the record of plaintiff'saequittal, set out in this demurrer, by the unauthorized act. of the defetldants, is the record upon which plaintiff relies. Aside from this, the law lleems well established in this .state that oyer cannot be demandedof & record. Giles v. Shaw, Breese, 219, and other Cases there-