Henderson v. Holman

69 So. 424 | Ala. | 1916

McCLELLAN, j.

This bill — filed by J. E. Henderson against Brock, as clerk of the circuit court of Coffee county, McBride, as sheriff of Pike county, and Y. Allen Holman — seeks to restrain the officers and the said Holman from selling under execution issued by the clerk of the Coffee county circuit court certain real property in Pike county levied on and belonging to Henderson to satisfy a judgment against Henderson and against Simmons as a surety of the former’s claim bond, under the circumstances fully set forth in the report of the appeal of Henderson against Holman; to be found in 185 Ala. 538, 64 South. 11. It is not necessary or desirable to repeat the facts and circumstances there adequately set forth. Reference to that report must suffice. It was there decided that the claimant’s failure to' deliver all the lumber, according to the letter of the forthcoming bond, was a breach thereof, and that the petition for supersedeas was properly denied.

(1-3) The bill’s fundamental theory is rested on the contention that the process levied on the Pike county property of Henderson is unauthorized by law, for these reasons: (a) That complainant exonerated his claim bond by a delivery of the lumber, a contention that was finally concluded against Henderson in the proceedings affirmed, as reported in 185 Ala. 538, 64 South. 11; (b) that complainant is entitled to credit on the execution of the value of the lumber delivered, as he asserts, to the sheriff; (c) that the execution embraces items of charge which were not properly included therein, which should be eliminated; (d) that the levy on the real estate in Pike county creates, or will create, if the intended sale is effected, a cloud on his title, which only a court of equity can avert or remove.

The chancellor granted the motion to dissolve the temporary injunction issued theretofore, and sustained the demurrer to the bill, both on the ground that there is no equity in the bill, that the complainant has an adequate remedy at law, viz., to invoke the court, the process of which is the cause of Henderson’s complaint, to revoke the process, if found to be defective, or to discharge tbe levy, or to accord such credit, if any, on tbe judgment involved, as may be ascertained to be Henderson’s due. It is manifest that if the court from wbicb tbe process emanates may, as is clear in a proper case, control its execution or quasb it before a sale thereunder, there cannot result therefrom a cloud or shadow upon tbe title of defendant in tbe judgment. If tbe process is void upon its face, then it could cast no cloud upon property. — Rea v. Longstreet, 54 Ala. 291. If it is irregular or defective, or runs for an amount or in a sum not warranted by tbe judgment, an entirely adequate remedy is available to tbe defendant in tbe judgment in tbe court of law from wbicb it is issued. — -Triest v. Enslen, 106 Ala. 188, 17 South. 356; Harrison v. Hammer, 99 Ala. 605, 12 South. 917. If tbe process is excessive in amount, and its execution would impose injustice, because tbe total or partial satisfaction of the judgment has been already afforded, tbe defendant in tbe judgment has an adequate remedy in tbe court from wbicb tbe process has issued. Code § 3256; Thompson v. Lassiter, 86 Ala. 5404, 6 South. 33. Tbe power of tbe dourt to control its process, to quasb it, or to give it an effect not inconsistent with substantial justice under tbe judgment tbe process would enforce, is inherent and is never doubted. — Rhodes v. Smith, 66 Ala. 174; Atkins v. Siddons, 66 Ala. 453.

(4) Tbe indorsement of tbe sheriff upon tbe forthcoming bond was a compliance with the letter of the statute. Code, § 6042. Tbe indorsement reads: “The time having expired for tbe delivery of tbe property and tbe payment of tbe costs, this bond is forfeited.”

Tbe reference, in tbe indorsement, to tbe expiration of time for the delivery of the property, must be taken to have been to the period prescribed in the statute. Code, § 6042. It appears from the opinion in the other appeal (185 Ala. 544, 546, 163 South. 11) that the ‘‘parties treated the return of the sheriff as sufficient,” and this court then so treated it. This conclusion on the part of all was well entertained. The bill is without equity. Hence the decree dissolving the injunction, and also the decree sustaining the demurrer to the bill, were well rendered.

Affirmed.

Anderson, O. J., and Sayre and Gardner, JJ., con. cur.