Cawthorne v. Knight

11 Ala. 268 | Ala. | 1847

ORMOND, J.

The authority conferred on the sheriff by the execution, was to levy on the property of the defendants, and if he has levied on the property of a stranger, our statutory method of the trial of the right of property, or the common law action of trespass, will afford the injured party ample redress. The motion to set aside the levy, involved a decision of the question, whether the slave was the property of the defendants in execution, or of the plaintiff in error, which the court had no power to determine in this summary way.

The court will, it is true, in some-cases of pressing necessity, and where no other adequate remedy exists, act summarily, and prevent the abuse of its process — as where a sheriff, in executing an habere facias, delivers possession of lands which have not been recovered by the judgment, and when in the execution of a fieri facias, by the fraudulent or improper conduct of the sheriff, injury has resulted, the court may set aside the sale. [Mobile Cot. Press v, Moore, 9 Ala. 692, and cases there cited.]

The interference of the court in such cases is, to prevent the abuse of its process, but it never has been supposed, that under color of exercising this right, it could in this summary way determine upon conflicting tiles to property.

The right of a sheriff to amend his return, according to the truth of the case, is always conceded to him by the court, when it does not impair rights which have vested in others. [Watkins v. Gayle, 4 Ala. 153; McGehee v. McGehee, 8 Id. 86.] But this is always at the instance of the sheriff himself, who is responsible for the consequences attending the act. It could not be permitted, that a stranger to the proceedings should- be allowed thus to affect the rights of parties, by changing the return made by the sheriff. In every view we can take of this case, the judgment of the court appears to us to be correct, and must be affirmed.