
    Smith et al. v. Davis.
    
      Trespass.—Judicial Sale.—Execution.—Judgment.—Appraisement.—Pleading. —In an action by an execution debtor, against his execution creditor and a constable, to recover damages for the trespass of the latter in selling the goods of the debtor, without appraisement, on an execution in favor of the creditor, on a judgment against the debtor not waiving appraisement, it is not sufficient to answer that such judgment had been rendered for a tort committed by the defendant.
    Erom the Tipton Circuit Court.
    
      N. It. Overvian and N. W. Parker, for appellants.
    
      M. Bell and M. McDowell, for appellee.
   Perkins, J.

Suit by Davis, against Smith and Philpot. The first paragraph alleged the wrongful taking and conversion of the plaintiff’s goods.

The second paragraph alleged, that the plaintiff' was, and for a long time had been, a resident householder in Tipton county, Indiana, that he was a tenant of Harrison Smith, who prosecuted an action before a justice of the peace, against the plaintiff in this action, to recover possession of the premises held by this plaintiff as his tenant, and recovered judgment for the possession of the same, and costs, on which a writ of execution issued, to collect the costs due, upon which defendant Philpot levied upon his personal property; that he duly made claim to the same, under the statute of the State, as exempt from execution; that said Philpot, constable, disregarded said claim, and sold the property.

The third paragraph alleged the tenancy, the suit against the plaintiff' for alleged unlawful holding over, the recovery therein, but that the judgment was not rendered without relief from valuation laws, and that the said constable sold said property without appraisement, etc.

The defendants demurred “ to each of said paragraphs, separately,” as not containing a cause of action. The demurrers were overruled.

The defendants answered m two paragraphs :

1. General denial.

2. “That the suit in which judgment was recovered' and execution issued against the plaintiff, and upon which the property mentioned in the complaint was levied upon and sold, was an action of tort, for the unlawful holding and wrongful detention of the real estate of the defendant Smith; that said execution in the hands of the defendant Philpot was a lien upon the personal property of the plaintiff, which was lawfully.taken 'and sold as aforesaid, and that said plaintiff, has never tendered the amount of the claim for which said execution was a lien.”

A demurrer to the second paragraph of answer was sustained, and exception entered. Thereupon the defendants withdrew the general denial, and the' court found for the plaintiff, and gave judgment accordingly.

There was no motion for a new trial, nor exception to the judgment.

The rulings upon the demurrers are assigned for error.

There was no error in rendering judgment for the plaintiff. Conceding that the judgment on which the property was sold was for a tort, and that, hence, the plaintiff had no right to claim the property as exempt from execution (2 R. S. 1876, p. 352), these facts did not, in this case, authorize the sale of the' property without appraisement. On execution on a judgment for a tort, property, as a general rule, must be appraised before sale. 2 R. S. 1876, p. 210, sec. 445; 2 R. S. 1876, p. 188, sec. 381; Croy v. The State, 32 Ind. 384. The officer, by abuse of his authority in selling the property without appraisement, became liable to this action. Stephens v. Lawson, 7 Blackf. 275.

The third paragraph of complaint constitutes a good cause of action, and may uphold the judgment. Newell v. Downs, 8 Blackf. 523. The same property was sold without appraisement that was claimed as exempt from execution.

The second paragraph- of answer constituted no defence to it.

The judgment is affirmed, with costs.  