Garrett v. Cobb, 74 So. 226

Garrett v. Cobb

74 So. 226 | Ala. | 1916

Sayre, J.

(1) The alternative writ in mandamus is not process merely, but both process and pleading. — Longshore v. State, ex rel. Turner, 137 Ala. 636, 34 South. 684. Section 4864 of the Code provides that “any of the pleadings in such proceedings may be amended as often as occasion may require to attain the ends of justice.”

(2) Assuming that the writ in this case was amended so as to leave with respondent the alternative of returning the bond forfeited or showing cause why it should not be so, instead of commanding him to show cause why the bond had not been forfeited, as perhaps the original writ did — though from the record it is not at all clear that this was the effect of the amendment allowed — the amendment left open the way to respondent either' *82to return the bond forfeited, and thus put an end to the proceeding, or to show cause why it should not be done, and thus the ends of justice were attained, as the statute contemplates. — Longshore v. State, ex rel. Turner, supra.

(3) The duty required of respondent was ministerial, and his failure or refusal invited an apt use of the writ of mandamus.— Cooper v. Davis, 88 Ala. 569, 7 South. 145. Petitioner had a remedy by suit on the bond, it is true, but he was by the statute vested with a right to the summary cumulative remedy by execution against the sureties on the bond upon the sheriff’s return of the same as forfeited, and he was entitled to the writ of mandamus to make this summary remedy effectual.

The sheriff had seized some horses and mules under a statutory writ of detinue. Plaintiffs in the detinue suit had given bond and taken possession of the animals. After verdict and judgment for plaintiffs, which ascertained the amount of defendant’s indebtedness under the mortgage through which plaintiffs in that suit claimed, as provided by section 3789 of the Code, defendant in that action, petitioner and appellee in this, paid the amount of his mortgage indebtedness and the officers’ fees, and, plaintiffs having failed for 30 days after judgment to deliver the property, defendant demanded of the sheriff that he return the bond forfeited as provided by sections 3790 and 3783 of the Code; but the sheriff refused on the ground that his compensation for keeping the animals pending the execution of the replevy bond had not been paid, and the meritorious question in the case is whether, on the facts stated, the respondent sheriff was correctly required to return the bond forfeited.

(4, 5) Section 3722 of the Code allows to sheriffs for taking care of personal property seized under a writ of detinue “such compensation as the court may fix” to be taxed as costs. In this case the sheriff had rendered a statement of the amount claimed by him for taking care of the animals, and the clerk had placed this item among the other items of costs upon his cost bill; but the court had not been asked to fix this compensation, nor had it made any order. Defendant, refusing to pay this charge, demanding nevertheless that the bond be returned fprfeited. It is clear that this compensation does not become a part of the taxable costs until its amount has been fixed by the court, and from the foregoing statement of the record it appears that the ultimate question to be decided is this:. Upon whom rested the burden of *83moving the court to fix the sheriff’s compensation for taking care of the property? Upon this question the court holds that if the sheriff in such cases would make the payment of his compensation of this sort a condition precedent to a return of the bond forfeited, he must move the court to have the amount of it fixed by judicial order.

Anderson, C. J., and McClellan and Gardner, JJ., concur.