47 Ala. 299 | Ala. | 1872
This is a summary proceeding, by the defendant, in an attachment suit which failed and was dismissed, instituted by motion against Moseley as sheriff and his securities, to compel said sheriff' to pay over to the plaintiff in the motion a certain sum of money, and damages for detention of the same, which sum of money is the proceeds of the sale of certain perishable property of the plaintiff in said motion, sold by order of court, under section 2956 of the Revised Code. The motion was dismissed upon demurrer to the notice of the motion in the court below, and judgment rendered for costs against the plaintiff in the motion. From this judgment there is an appeal to this court.
The motion in this court to dismiss the appeal is denied, with costs. The judgment from which the appeal is taken is final. It dismisses the suit, awards judgment for costs, and directs execution to be issued on the judgment. — Revised Code, § 3485; Archb. Forms, p. 129, marg.; Tidd Pr. 930, marg.
In such a proceeding as this in the court below, the entry of the motion on the motion docket of the court is sufficient notice to the sheriff and his securities. — Revised Code, § 3027. This motion may be made against the sheriff and his securities, or either of them, “for any money thus received for the sale of perishable property, and judgment rendered against him for the amount and five per cent, a month from the time of the demand.” — Revised Code, § 2958. The motion in this case sets forth all the facts which would authorize a recovery, though some of these facts are very untechnically and indefinitely stated. Yet I think an issue upon the merits might have been taken upon them. This is sufficient upon a general demurrer. — Rev. Code, § 2629; 41 Ala. 256; 40 Ala. 63. But the demurrer in this case is not only general, but also
The judgment of the court below is reversed, and the cause is remanded.