Harkins v. Clemens

1 Port. 30 | Ala. | 1834

By Mr. Chief-Justice Lipscomb :

An application was made by the plaintiff in error, to su-percede an execution sued out against him, in favour of the defendant. The supersedeas was granted, but at the next succeeding term of the court to which it was returned, it was quashed, and the execution re-inr.tated. it seems that a fieri facias had been placed in the hands of the plaintiff in error, as sheriff, against one David Low, and others, in favor of the defendant Clemens. This fi. fa. was not cotis-fied, and judgment was recovered against the plaintiff, cn motion. On this judgment an execution was sued out, placed in the hands of the coroner, and by Ura returned satisfied. Afterwards, an alias fieri facias was issued by the clerk on the same judgment, which the plaintiff in error sought to have quashed, but was .overruled by the court below. ■ The refusal of the court to quash the execution against the plaintiff,' is assigned for error. From the record before us, it would seem, that the judgment before us had been more than satisfied by the first execution, returned by th'e coroner. It is, however, suggested, that the execution was not sued out for the proper amount, -and that the coro ner, although he had returned it satisfied, bad-received but a small part of the amount that it called for. It is not unreasonable to presume, that there has been some mistake made by the clerk. The amount of the debt due by Low and others, to Clemens, with interest at the time judgment was rendered against Harkins, the sheriff, was something more than five hundred dollars; a rsmitteler was entered for five hundred dollars, and the execution put in the hands of the coroner, and returned satisfied, was for something less than five hundred dollars : which, when added to the amount remitted, would make between nine hundred and a thousand dollars — a sum greatly exceeding what could have been legally recovered, even if ten per cent, damages had been allowed on the amount remitted, at the time the judgment was rendered against the sheriff. But if there is a mistake in the record, and this sum of more than nine hundred dollars has not been paid, it required the action of the court below to correct the mistake, and the clerk was not permitted to issue another fieri facias on the same judgment, when full satisfaction had been returned on the first. The second execution was, therefore, improperly issued, and ought to have been quashed.

The judgment is therefore reversed.

This judgment, however, will not prejudice any application, in the court below, to correct any mistake that may exist.