Huggins v. Ball

19 Ala. 587 | Ala. | 1851

COLEMAN, J.

The proceeding and judgment in this c.as$ were had under the act of 1840, authorizing the clerk of the Supreme Court, in the name of the successful party, to commence and prosecute auy motion against any sheriff or liis securities for failing to return any execution from the Supreme Court. By a further provision of the act, and those acts to which it refers, .r.ko plaintiff was entitled to recover against the sheriff' the .amount of the execution which he failed to return.

It is contended that this ac't was repealed by the act of 1848, which declares that ‘.‘from and after the passage of this act, when any writ of exception shall come to the hands of any sheriff or coroner, and ho shall fail to return it to the .office from which it issued? on or before the return day thereof, it shall be iawful for the court to which said execution may be returnable, upon three days notice being given by either party thereto, and. 5h motion of the plaintiff or plaintiffs,-' defendant or defendants, in said execution, to render judgment against the sheriff or coroner thus failing and his securities on his official bond, or any or either of them, at the rate of twenty dollars for every hundred dollars contained- in the judgment or decree on which the execution issued, and so in proportion for any greater or less sum, and. no more.” The third section of this act repeals all laws and' parts of laws contravening its provisions.

By the acts of 1819'and 1821, the plaintiff was authorized to recover against the’sheriff the amount of any execution which he failed to return according to law,' and we think the Legislature intended by the act of 1818 to repeal those general acts and not the special act of 1840.

When an act of the Legislature admits of two constructions, the one violative of the constitution and the other not, we ought certainly to give it the latter construction. If the act of 1848 were construed to rephal that of 1840, it would give to the cleric of the Supreme Court the right to ploceed in that court- against t'he sheriff for failing to return an execution,'and thus create the necessity of having a jury to try the issues that might arise in the case, and confer original jurisdiction' oír the Supreme Court, Such a law would clearly be unconstitutional.'

Again: in interpreting statutes,'weshould certainly not-favor ahy construction that would lead to'an unreasonable result. If the construction contended foi’ by the plaintiffs were to prevail, a sheriff in the remotest’ county in the State might be required fro attend this court ahd defend a'motion against him on three days previous notice thereof.

It is contended that the Circuit Court had no jurisdiction in this case, the amount claimed and recovered being twenty-five dollars sixty-three cent's. The constitution declares that the Circuit Courts shall have jurisdiction in civil cases only when the matter or sum in controversy exceeds fifty dollars. We think this is not a civil case within the meaning of the constitm (ion, but a proceeding had for the recovery of a fine or penalty dgainst a public officer for a default or dereliction in bis official duty. Actions founded on torts are civil cases in one sense of the term, but the jurisdiction of the Circuit Court in any case df tort has never been doubted, however small the matter in AMrovcrsy. We consider the default of the sheriff in this case to be in the nature of a tort. When any injury is.sustained from the neglect of duty on the part of an officer, an action ex delicto is the appropriate remedy.

Let the judgment below be affirmed.

Dargan, C. J., not sitting.