81 So. 190 | Ala. Ct. App. | 1919
This is an appeal from a judgment awarding a writ of mandamus directed to the appellant as treasurer of Jefferson county, ordering him to register a witness certificate against the fine and forfeiture fund of that county. This cause was tried upon the petition, answer, and an agreed statement of facts. The answer of the respondent denied that the certificate was a legal claim against the fine and forfeiture fund, and denied that there was any duty resting upon respondent to register same.
On the 27th day of April, 1897, the clerk of the criminal court of Jefferson county issued to one S.V. Copeland, a witness for the state in the case of State v. Phil Dorsey, a witness certificate for $1.70. The relator is the owner of this certificate. Phil Dorsey was convicted and sentenced to the penitentiary. A judgment was rendered against Dorsey on May 3, 1897, imposing costs upon him, including the claim of the witness Copeland. On the 9th day of February, 1898, execution was issued upon this jugdment and returned, within the time required by law, "No property found." No other execution was issued upon this judgment until the 26th day of September, 1917, more than 20 years after its rendition, when, at the instance of the relator, the clerk of the circuit court of Jefferson county, issued a second execution against the defendant Dorsey. On this day, the 26th of September, 1917, the clerk of the circuit court made the following indorsement on the face of the witness certificate:
"In this case the defendant was adjudged guilty, and sentenced to the penitentiary, and has been proven insolvent by the return of 'No property found' on execution against him."
On the 26th of September, 1917, the relator presented to the treasurer of Jefferson county this certificate, with the above indorsement of the clerk of the circuit court, and demanded that it be registered as a claim or charge against the fine and forfeiture fund of that county. These are the facts upon which this cause has been submitted here.
Mandamus is an extraordinary legal remedy granted only when a clear, specific legal right is shown, and the absence of a clear, specific legal right is fatal to an application for the writ. Ex parte Huckabee,
The first question we must consider, therefore, is whether the facts and circumstances proven in this case show that it was the duty of respondent to register this certificate against the county. The burden of showing this was assumed by the relator. It is conceded that a witness certificate of this sort is not an absolute claim against the fine and forfeiture fund. It is only a contingent *672
claim against this fund and is not entitled to registration except upon the concurrence of certain conditions. Alston v. Yerby et al.,
There is another objection to this certificate as a claim against the county equally fatal. Judgment for costs in this case was rendered May 3, 1897, upon which execution issued February 9, 1898. Under section 4154 of the Code, this judgment after February 9, 1908, must be presumed satisfied and the burden of proving it if not satisfied is upon the plaintiff. After May 3, 1917, under section 4155 of the Code, no scire facias would issue to revive this judgment, and under section 4833 of the Code of 1907, the statute of limitations of 20 years operated as a bar to an action upon it.
On September 26, 1917, when the clerk made the indorsement on the witness certificate, which we have quoted in this opinion, the judgment, into which this certificate had merged, had passed beyond the control for all purposes of the court rendering it and necessarily beyond the control of the clerk of the court. Presumption of payment arises from lapse of time, and apart from any statutory regulations the presumption of payment of a judgment, or other obligation 20 years after its maturity or its rendition is conclusive. Semple v. Glenn,
From these authorities it follows that the judgment in the case of the State v. Dorsey, at the time that the clerk made the indorsement on the witness certificate, as a matter of fact and law, was paid and discharged and had ceased to be an obligation enforceable by execution or by any other proceeding in the courts of this state. The certificate being merged into the judgment, and the judgment shown to be paid and satisfied, the indorsement by the clerk upon the witness certificate of the statement set out in this opinion could by no method of reasoning be made to endow with life or validity this certificate. The witness certificate, like the judgment of which it is a part, must, under the evidence of this case, be presumed to be paid and satisfied.
Reversed and rendered.