Bain & Sons v. Mitchell

82 Ala. 304 | Ala. | 1886

CLOPTON, J.

— The initial process is an attachment issued by the mayor of Guntersville, returnable before himself, and levied on the property in dispute by the sheriff of the county. The act to incorporate the town provides : “ That the mayor shall possess all the powers and jurisdiction of a justice of the peace in civil and criminal cases, concurrent with and which are now possessed and exercised by justices of the peace in the county of Marshall, and be subject to all' corresponding duties and responsibilities ; and for his services in such cases shall be entitled to the fees which are or may be allowed by law to justices of the peace ; and his signature or acts in such cases shall be of equal force as if done by him expressly as a justice.” - Acts 1871-72, p. 216. In Griffin v. Appleby, 69 Ala. 409, it was held, that the constitutional grant to notaries public appointed by the governor — “to have and exercise the same jurisdiction as justices of the peace” — is as plenary within their respective precincts and wards, as is the grant to justices of the peace; and that by authority thereof, notaries public, empowered by their appointment to have and exercise such jurisdiction, can issue attachments returnable before themselves. This ruling was followed and re-affirmed in Rice v. Watts, 71 Ala. 593. The principle on which these decisions rest is, that the grant of jurisdiction being plenary, the means to make it effectual, none being specially provided, must be supplied by the common law, or by the statutes pertaining to the subject-matter; that whatever power is given by statute, necessary to render the jurisdiction of the justice of the peace effectual and operative, the notary, having the same jurisdiction, takes and may employ, as if mentioned eo nomine in the statutes. More comprehensive terms to confer power and jurisdiction could not have been selected, than are employed in the act of incorporation —“ shall possess all the powers and jurisdiction of a justice of the peace in civil and criminal cases, concurrent with and which are now possessed and exercised by justices of the peace in the county of Marshall; . . and his signature or acts in such cases shall be of equal force as if done by him expressly as a justice.” On the principle settled as above stated, authority to issue attachments within the corporate limits, for the collection of debts not exceeding one hundred dollars in amount, returnable before himself, is conferred by the act of incorporation.

It is contended, that if the mayor had power to issue the writ, the sheriff was without authority to execute it, — was a trespasser in seizing the property under it, and the levy is void. The argument is, that by the provisions of the incorporating statute, the writ should have been directed to the marshal of the town, and must be executed by him. After granting the powers and jurisdiction of a justice of the peace, and original and exclusive jurisdiction as mayor, the statute continues : “ And upon the judgment of the mayor in any case, in either branch of his jurisdiction as mayor or as justice, execution or other appropriate process may be issued by the clerk of the corporation, directed to, and to be executed by the marshal.” The execution, or other appropriate process, which it is provided shall be so issued, directed and executed, refers to final process upon a judgment rendered by the mayor. No provision is made as to the character, form or execution of original or mesne process which may be requisite to make his jurisdiction as a justice of the peace effectual. The powers and rights of constable are conferred on the marshal, and he is required to execute all warrants, precepts, executions, and all processes from the mayor’s court. He is required to perform all the duties properly pertaining to the office of marshal of the corporation, and is also authorized to perform the duties of constable within the county, but not exclusively. In the absence of special provisions, the statutes pertaining to the exercise of his jurisdiction by a justice of the peace supply the kinds and forms of original or mesne process, and prescribe to whom to be directed, and by whom to be executed, which the mayor may employ-in the exercise of his powers and jurisdiction of justice of the peace. The' present case falls within the influence and operation of the cases cited above. The writ of attachment is directed in conformity with the statutory form of such writs, when issued by a justice of the peace — •“ to any constable of said county” — which is authority to any constable to execute it; and by section 731 of the Code, 1876, “ the sheriff is authorized to execute all mesne and final process which is required of constables.” There is no defect in the attachment or levy, of which the claimant can take advantage in a statutory trial of the right of property.

Affirmed.