Clark v. Lamb, 76 Ala. 406

Clark v. Lamb

76 Ala. 406 | Ala. | 1884

CLOPTON, J.

— The liability sf the sureties for a sheriff arise from his official bond. Like other sureties, a claim against them is strictissimi juris, in the sense that they may stand on the terms of the bond, and will not be bound beyond the fair and reasonable import of the words. A statute, which declares the legal obligation and effect of an official bond, is a part of its terms, as fully as if its words were expressly written in its condition. The official bond of the sheriff is obligatory on the sureties, “ for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his *408office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” — Code, § 179. Eor any malfeasance or misfeasance of the sheriff, not included within the rational and legal meaning of the words of the statute, the sureties are not liable. The statute extends the liability of the sureties to those acts of the sheriff by which an injury is done under assumed and pretended official authority, having process in his hands. — McElhaney v. Gilleland, 30 Ala. 380.

A sheriff is bound to execute a process, coming into his hands, according to its exigency, which is regular on its face, and issued by a court of competent jurisdiction. Tie is under no legal duty to examine the regularity of the judgment, on which it is issued ; and if irregular, such irregularity is no excuse for his failure to execute the process. If the judgment is in fact void, the sheriff may avail himself of this, as a defense for not obeying its mandate; but, in such case, the writ, being regular and valid on its face, will operate to proteht him in its execution. This salutary principle has been affirmatively declared by section 3041 of the Code, as follows: “ Whenever it appears that the process is regular on its , face, and is issued by the competent authority, a sheriff, or other ministerial officer, is justified in the execution of the same, whatever may be the defect in the proceeding on which it was issued.” This rule is merely protective, and the sheriff can not found on it a title or claim.

The statute provides a mode by which judgments or decrees for money may be superseded on appeal being taken. Section 3927 of the Code provides: “Where the judgment or decree is for the payment of money, the appeal does not supersede the judgment or decree, unless bond be given by the appellant, or some other person, in double the amount of the judgment, payable to the appellee, with sufficient sureties, and with condition to prosecute the appeal to effect, and to satisfy such judgment as the Supreme Court may render in the premises.” If the judgment has been superseded, the sheriff is entitled to such notice thereof, as will protect him in refusing to proceed with the execution of the writ. In Payne v. The Governor, 18 Ala. 320, it is said: “ The sheriff may, therefore, require a supersedeas to him directed, before he can be made a trespasser in executing the writ; and if this be not served on him, and he proceeds to sell the property of the defendant, we see no reason or justice in holding the sheriff liable.”

It being the duty of the sheriff to execute the writ according to its mandate, if he levies upon and sells property of the defendant, under an execution issued on a judgmeut not superseded, or collects the money otherwise, he thereupon becomes *409liable to account to the plaintiff: therefor, and no irregularity, not even the nullity of the judgment, will be an excuse for his refusal to account. If he pays the money to the plaintiff before an appeal is taken, he is under no legal liability to refund to the defendant, though the judgment is subsequently reversed ; and a purchaser of property so sold, if he be not the plaintiff, acquires a title which will be upheld. — Sherrod v. Davis, 17 Ala. 312 ; Wyman v. Campbell, 6 Por. 219. If the defendant fail to supersede the judgment, it is the legal right of the plaintiff to enforce its collection, in the manner provided by law. In executing process issued thereon, the sheriff discharges a legal duty ; and the defendant has no cause of complaint against the officer, in consequence of his failure, whether from willfulness or inability, to avail himself of the statutory provisions by which it may be superseded.

In Wilson v. Sawyer, 37 Ala. 631, the action was against the sheriff individually. The extent of the decision is, that “a sheriff is not entitled, as against the defendant in execution, to retain his commissions out of the proceeds of the sale of property under an execution regular on its face, but issued on a judgment which is void on account of the incompetency of the presiding judge.” It was, however, conceded, that the statute protected the sheriff in the execution of such process. The individual liability of the sheriff may be conceded, founded on the consideration, that he has money which, ex aequo et bono, belongs to the defendant in execution. If there be any wrong, it consists in retaining the commissions after the reversal of the judgment.

The judgment was not reversed, until after the death of the sheriff, which terminated his office. When the sheriff collected the commissions, he was in the discharge of his official duties, imposed by law ; was executing a writ, regular and valid on its face, and issued by a court of competent jurisdiction to render such judgment and award such writ. lie was authorized to take and collect the commissions at that time, and had a right to retain them, at least, until a reversal of the judgment. If the plaintiff has a right to them, it is because of an event subsequently occurring — the reversal of the judgment, — which did not occur in the life-time of the sheriff. On the facts shown by the record, the sheriff committed no wrongful act under color of his office, nor failed to perform, nor improperly nor negligently performed, any duty imposed by law, for which his sureties are liable. — State v. Vananda, 7 Black. 214.

Affirmed,