4 Div. 320. | Ala. | Apr 7, 1927
This is a motion for summary judgment against a sheriff and the sureties on his bond for failure to make money on execution (Code, § 10233), and for failure to indorse on the execution the true date of delivery (Code, § 10236).
The execution received by the sheriff, for which he is called to account, was a summary execution issued upon a forfeited replevy bond in attachment. Code, § 6204.
The attachment for rent, levy on the crops, execution of a replevy bond, judgment of condemnation, default in delivery of the property, return of the bond forfeited, and issue of the summary execution thereon, all followed in due course.
Throughout the proceedings the suit was W. C. Braswell v. Arthur Wilkerson, as sole defendant, except in this: In the replevy bond it is recited that the suit is against Arthur Wilkerson and E. C. Moore, and that the writ is directed against the estate of both. The bond is signed only by Wilkerson and his sureties, recites the property was delivered to him on the execution of the bond, and binds him and his sureties to return the property according to the statutory condition.
It appears that after the sheriff received the execution on the forfeited bond, and after conference, he indorsed the execution, "recalled by the clerk," and returned it, and also indorsed the bond, "Forfeiture withdrawn."
The defense set up is that the replevy bond was not a statutory bond for failure to correspond with the writ and other proceedings in naming the parties to the suit; that therefore the forfeited bond would not support a summary execution, and was properly recalled or returned without action thereunder.
In Moffitt v. Branch Bank,
In Nicolson v. Burke,
The principle announced in these early cases was that the forfeited bond, under the statute, has the force and effect of a judgment against the obligors, including sureties, who are made quasi parties by reason of their execution of the bond; and that a statutory judgment of this character must follow strictly the substance of the statute. For the purposes of such judgment, the description of the parties as given in the bond has been treated as matter of substance — identifying the bond with the writ and the judgment of condemnation.
Alongside these cases came Meredith v. Richardson,
In Adler v. Potter,
"The recitals of the attachment, and its levy, are not of matters of substance, but of matters of inducement, showing the consideration of the bond."
This was an action on the bond as a common-law obligation; parol evidence was allowed to connect the bond with the writ. But the same case recognizes a different rule in dealing with a summary execution on the forfeited bond. See Code, § 2615.
The action of the clerk in recalling a valid execution from the sheriff would afford him no protection. When duly issued, the control of the clerk ends; the duty of the sheriff ensues to perform its mandate subject to certain control by the plaintiff in the process.
But the summary proceeding on a sheriff's bond is penal in character. A summary judgment will not be rendered against him for failure to make the money on execution without a valid judgment behind it — one subject to be quashed on motion of the defendants. The misfeasance or malfeasance of the sheriff, through his deputy, in taking an insufficient bond, is not the basis of the motion here. For like reasons, no judgment should be rendered for failure to indorse the date of delivery to him.
Following the law as long written, we must hold the appellant is left to his remedy by action on the replevy bond, and, if need be, on the sheriff's bond for such damages as *64 may have accrued by failure to take such bond as the statute requires. Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.