94 Ala. 233 | Ala. | 1891
— An execution was issued on a judgment recovered by the appellee before a justice of the peace against Gamble & Brother, and was placed in the hands of a constable, who made a return thereon stating that it had been levied on certain personal property, subject to two attachments in the hands of the sheriff. The constable did not take possession of the property .claimed, to have been levied on, bnt it was
The statutes authorize the Circuit Court to render summary judgments against a sheriff for certain specified defaults. Code of 1886, §§ 3095 to 3113. Justices of the peace may also, on motion, render judgments, not exceeding one hundred dollars, against a sheriff for certain like defaults. — Code of 1886, 3325 to 3329. These summary remedies are applicable only in the particular cases specified by the statutes, are not to be extended by construction, are grantable only in strict conformity to the statute ; and the record must disclose every fact necessary to entitle the party to such remedy, and that it has been pursued according to the statute. — 2 Brick. Dig., 464, §§ 1 and 6; 3 Ib. 751 ; Warwick v. Brooks, 70 Ala. 412. There is no statutory authority for a summary j udgment against the sheriff in a case like this one. The statutes above referred to authorize such judgments against sheriffs’ forcertain acts of negligence or misfeasance in failing to do what is required of them by process coming to their hands. They are intended to afford prompt redress for certain delinquences in the discharge of particular ministerial functions. In each of the cases mentioned by the statutes the default authorizing a summary judgment consists in a failure to perform a duty imposed by process the execution of which has been intrusted to the officer proceeded against. Those statutes do not extend to the case of a breach of duty in regard to process in the hands of another officer. No case was made for a statutory summary judgment. Nor did the court have authority, independent of statutes, to entertain or grant such a motion. The application was not addressed to the inherent power of the -court to control its own process, for the execution under which the money -was claimed was issued, not from the Circuit Court, but by a justice of the peace. The morion was not made in any cause pending in the Circuit Court. There is no authority to proceed on such a state of facts by a motion against ■ the sheriff If the facts alleged give a cause of action in favor qf
It is not decided that the constable could make a valid levy on goods, the possession of which was retained by the sheriff, or that what was done amounted to a levy, or that the agreement made by the sheriff was binding on him. If those questions shall be presented in a proper manner, the following-authorities may be consulted: 1 Freeman on Executions, (2d Ed.) § 135; 2 Ib. § 267; 7 Amer. & Eng. Encyc. of Law, 126; Townsend v. Corning, 40 Ohio St. 335; Penland v. Leatherwood, 9 Amer. St. Rep. 38; Goode v. Longmire, 35 Ala. 668; Abrams v. Johnson, 65 Ala. 446; Ext parte Tillman, 9 So. Rep. 527; 93 Ala. 101.
The judgment is reversed, and the motion is hereby dismissed in this court at the cost of the appellee.
Reversed and rendered.