Governor v. Lindsay

14 Ala. 658 | Ala. | 1848

COLLIER, C. J.

Our statute in totidem verbis requires all process which is tó be executed by the coroner, to be directed to any coroner of the State of Alabama.— Clay’s Dig. 336, § 133. And long previous to this enactment, it was held, that to authorize the coroner to execute 'process, it should be directed to him eo nomine. Pope & Hickman v. Stout, 1 Stew. Rep. 375. In Adamson v. Parker, et al. 3 Ala. 727, such was held to be the effect of the act; and if the coroner levies an execution directed to the sheriff, he becomes a trespasser, and may restore the goods levied on to the possession of the person from whom he took them. Gresham v. Leverett, 10 Ala. 384. The first count of the declaration explicitly negatives the fact that the coroner was discharging the duties of sheriff’, which, in the event of a vacancy in that office, are devolved on him by the act of 1826, (Clay’s Dig. 536, § 10,) by alledging that the fi fa. was delivered to him to execute, because one of the defendants therein was the sheriff of Coosa, when it was issued and returnable, and during the intervening period. There is then no intendment, upon which the direction of the execution to the sheriff, can be held to confer power upon the coroner to enforce its mandate ; and the failure to proceed under it, cannot therefore be a breach of his official bond. See Adamson v. Parker et al. supra. This being the case, the first count set out no cause of action, and the demurrer was rightfully sustained.

In respect to the agreement of the counsel to try the cause on its merits, if it could avail any thing, it should have been brought to the view of the circuit court, as a reason why the demurrer should not be entertained. But upon the demurrer being interposed without objection, the court was not bound to look beyond the declaration, and apply the agreement as an estoppel. If the plaintiff did not insist upon it, it might very well be supposed, that he claimed nothing under it.

But conceding that the court should mero motu have looked to the agreement, and considered its effect, and we think it cannot be held that the demurrer did not reach the merits of the case. It is not indispensable to a trial upon the merits of the controversy, that the cause should be passed on by a jury ; but a defence upon an issue at law, may be quite as meritorious as if proof were adduced, and the facts litigated. A general demurrer, the only description known to our practice, since the act of 1824, in legal effect, says to the plaintiff, admitting the truth of all your allegations, and you have not shown a cause of action against the defendant; and the decision of the legal question is referred to the court. In thus answering the action, it is difficult either upon principle or authority, to discover any thing offensive to justice. If the fieri facias which was placed in the hands of the coroner, could not be executed by him without subjecting himself to an action of trespass, it would be exceedingly unjust and unreasonable to make him respond in damages, for failing to do that which the law prohibited. Such is the character and purpose of the plaintiff’s action, and we can see no ground upon which it can be held that the demurrer is not replete with merits.

The decisions of this, and all other courts, have been most liberal in allowing the amendment, both of mesne and final process, but no amendment of th&ji.fa. in question could be made, so as to subject the coroner to an action, for not making the money on it, when if he had levied it, he would have been (as we have seen) a trespasser. Such an effect would thwart the very object of améndments — the promotion of justice.

This view is decisive of the case, and the judgment is consequently affirmed.