Henderson v. Bank at Montgomery

11 Ala. 855 | Ala. | 1847

ORMOND, J.

When the witness, Campbell, answered, that he knew the writing shown to him to be the handwriting of Paul Williamson, the answer included within it an affirmation, that he knew the hand-writing of Williamson. If it was thought proper by the adverse party, he should have inquired into the source of his knowledge. It is not necessary to qualify one to swear that a paper is in the hand-writing of a particular person, that he should state how he obtained a knowledge of the character of his handwriting.

The objection to the reading of the exhibit to the deposition of Campbell, was not tenable. A sworn copy from the books of the- bank, it is admitted was sufficient, as it clearly was, the books themselves not being subject to be produced by a subpcena duces tecum. The witness under the interrogatory produces this transcript from the books, and swears to it. This establishes it as a sworn copy. He does not, it is true, say he compared it with the original, but he was required by the interrogatory, if the books of the bank contained a record of his appointment, to annex to his deposition a sworn copy. This he does in obedience thereto, and in the language of the commissioner, deposes to it; which, though not very formal, can admit of no other construction, than that it is a true copy of what it purports to be.

The execution issued from the circuit court of Montgomery, and was levied on property in the county of Monroe, where the claim was interposed. The act of 1828, (Clay’s Dig. 213, § 63,) requires the sheriff in such a case, to return the original execution to the county whence it came, and make out a copy of the execution and return thereon, and return it to the county in which the levy was made, “ and the copy of such execution shall be sufficient for the court to proceed on, and try the right of the property levied on.” The execution found in the record, contains an indorsement of the levy, and the return of the officer, but is not certified as a copy, though from the evidence in the cause, it appears to have been a copy, and not the original.

In Garrett v. Rhea, 9 Ala. 136, we held as to a certificate of a sheriff, in sucha case as the present, that the copy so transmitted was a correct copy of the original, and the return thereon was sufficient. It was not necessary then to consider whether any such certificate was- necessary. We are of the opinion that it is not. The statute does not require it, nor from the nature of the case could one be necessary. The paper shows upon its face, that it is not an original execution, and being returned with the bond, and affidavit of the clsimant, by the sheriff making the levy, to the court of the county in which the trial is to be had, is entitled to the same consideration there, that it would have if the execution had issued from the same court.

The officer who made the levy being dead, the plaintiff has taken the deposition of a witness to prove that his signature to the return is in his hand-writing. But this was wholly unnecessary, the claimant is estopped by his own deed from denying the levy, and in addition, it has been repeatedly held, that a claimant of property cannot object to any irregularity in the judgment, or execution. [See Fryer v. Dennis, 2 Ala. 144, and previous and subsequent cases.] This last remark applies with full force to the objection, that the deputy had never been sworn in as such.

Let the judgment be affirmed.