23 Ala. 826 | Ala. | 1853
The first question presented on the present record is, whether it affords sufficient evidence to authorize the
The evidence disclosed by the record is, the judgment against Price, the bond of Price as sheriff, on which the defendants Williams and Haynes are sureties, the pluries fi. fa. issued the 4th December, 1845, against all of the defendants, reciting the existence of a judgment against all of the said parties in the Orphans’ Court of Benton County ; and the alias pluries fi. fa. issued the 19th of December, 1850, being the one sought to be superseded and quashed. There is the additional evidence of the memoranda made upon th e margin of the minutes in the hand-writing of the person who was clerk of the court at the time the same purport to havo teen made, as follows : “ Fi.fa. issued April 22, 1845, to Wm. J. Willis, sheriff.” “ Fi. fa. returned “ no property found,” April 25,1845,” “ Mias fifia. April 28, 1845, to Wm. J. Willis, sheriff, against securities.” “ Pluries fi. fa. .December 4th, 1845, Wm. J. Willis, sheriff.” “Pluries fi. fa. returned “no property found,” January 7,1846.” “ Alias pluries ji. fa. issued I9th December, 1850, to 0. Subleit. Returned enjoined the 19th February, 1851. C. Sublett, sheriff.”
The above constitutes all of the evidence in support of the regularity of the execution, and on which the court below acted in quashing the same.
The act of 1882 (Clay’s Dig. 805 § 45) says : “ Whenever any execution shall have issued on any decree made by the Orphans’ Court, and final settlement of the accounts of executors, administrators or guardians, and is returned by the sheriff no property found generally, or as to a part thereof, execution may and shall forthwith issue against the securities of such executors, administrators or guardians.”
In order to sustain an execution against the sureties of an administrator, on a judgment or decree against such administrator, the record must show: 1st, the judgment; 2nd, the bond by which the sureties have become liable ; and, 3rd, the issue of an execution on said judgment against the principal, and return thereof by the sheriff “no property found."
Waiving for the present the question as to the regularity of the execution, as to the time when it was made returnable, our conclusion is, that the evidence was insufficient to establish the fact that an execution ever issued on said judgment against said Price alone.
Where written documents are attempted to be proved, which are alleged to be lost, the commencement of the proof is to show that such documents actually existed by testimony directly to the point; and then, their loss being proved, it is competent to prove their contents. But in the present case, the mere memorandum of the clerk upon the margin of his docket or his minutes we cannot regard as legal evidence of any fact, until it is snown that such entries are the best evidence the nature of the case admits of. This is not shown in the present case, and we must regard the record as containing no proof that any execution ever issued on the judgment against the said Price alone, or that the same was returned as to him no property found.— It follows, as a necessary consequence, that the execution was correctly quashed as to the sureties, Williams and Haynes.
The next question presented is, whether it was correctly quashed as to íh’ice. The judgment which is sought to be enforced against the parties defendants, by the execution in question, is one rendered on the 17th January, 1845, against the said Price, as former administrator of the estate of James Riddle, deceased, and in favor of the plaintiff in error, as administrator de bonis non of said estate. The judgment itself shows that it was for a balance of money in the hands of Price received in the course of his administration and unaccounted for. The question now arises, whether the court,- at that date, had
The judgment of the court below is therefore affirmed.