Johnson v. Collier

M. B. Johnson, as executor, recovered judgment against B. T. Collier, in the city court of Gadsden, Alabama. Execution thereon was levied July 20, 1906, on certain personal property.

Under a provisions of the Alabama statute, Collier immediately filed with the sheriff a claim of exemption. On the same day he filed, in the proper district court of the United States, a voluntary petition in bankruptcy, including this property in his schedule of assets. Notwithstanding the claim of exemption, the sheriff sold the property at public outery on July 30, 1906.

Thereafter, on a date not shown by the record, Collier was adjudicated a bankrupt. On August 8, 1906, before a trustee was elected, he brought suit against both Johnson and the sheriff for damages, on the theory that the sale of the property after the filing of the claim of exemption made them trespassers ab initio. The defendants filed a plea, in which they set up the pendency of the bankruptcy proceedings, and alleged that Collier had no title to the cause of action, which was in gremio legis until the election of the trustee, and for that reason he could not maintain a suit for damages occasioned by the unlawful sale of property included in the schedule of assets. A demurrer to this plea was sustained. The jury found a verdict in favor of Collier, which the trial court refused to set aside. This ruling was affirmed, and the case is here on writ of error from that judgment of the supreme court of Alabama.

Mr. George D. Motley for plaintiffs in error.

Mr. Amos E. Goodhue for defendant in error.

Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court: