53 So. 270 | Ala. | 1910
This was an application for manclamus to the judge of the First judicial circuit to com
The writ was practically in the form prescribed by the Code (section 3785). It contained three alter* native commands to the sheriff: (1) To attach the two mules recovered in the judgment if they might be had; (2) should the defendant secrete the property or remove it, so that it could not be attached, then to distrain the defendant by all his property, until he deliver to the sheriff or to the plaintiff the property in question, if the same might be done; (3) but, if not, then to cause the alternative value of the property to be made out of the estate of the defendant. The sheriff executed the writ by complying with the last alternafive, and so returned the writ.
The writ could only be properly executed in one of ' the three methods specified, and not in any two of them. In the absence of anything to the contrary, the sheriff must be presumed to have performed his duty— that the property could not be attached by him, and that the cause of distringas did not exist, and that he therefore properly executed the writ in the third and' last mode directed. This return of his, however, was not conclusive upon the plaintiff, so as to prevent her from subsequently obtaining the specified property under other appropriate writs to be thereafter issued. Plaintiff was not bound to accept the alternative value in lieu of the specific property, and thereby satisfy her judgment against defendant, and relieve the sheriff from all liability for failure to discharge his duty under this writ, - if he did so fail, as to which we, of course,. do not mean to intimate an opinion. The plaintiff is not required in detinue suits to accept, the alternative
The plaintiff in this case, however, mistook her remedy to obtain the property. She should have applied to the court for an alias writ, commanding the sheriff to attach the property if it could be found; or, if not found, and it appeared that the defendant had secreted or removed the property so that it could not be attached, then to distrain the other property of the defendant until he produced and delivered the property in question. The circuit court could not properly issue a mandamus to the sheriff to execute a writ he had already executed and returned. The writ was functus officio. Before the sheriff can execute any writ by attachment or distringas, he must have a live writ. The statute (section 8786 of the Code) expressly provides that the issuance of one or more writs for the enforcement of judgment in detinue shall not bar or prevent the issuance of other appropriate writs until there has been a satisfaction of the judgment.
It was open to plaintiff to apply for such other writs, and her failure so to do does not give her the right to compel the execution of a writ which is functus officio, Avhatever may be her other grounds.
Finding no error, the judgment of the lower court refusing the mandamus to the sheriff is affirmed.
Affirmed.
