105 So. 177 | Ala. | 1925
The appeal is from a decree sustaining demurrer to the bill.
Acts 1915, p. 270, amending sections 4079 and 4080 of the Code of 1907, prescribed that, unless otherwise directed, the clerk must issue execution on all judgments in favor of the successful party as soon after the time prescribed for the issuance of said execution by law as is practicable, and did not deprive the owner of a judgment of the right to direct that execution not issue thereon. 23 Cyc. 1427; 34 C. J. 658. The words "unless otherwise directed," according to Judge Stone, had reference to a judgment which on its face directed a stay of execution, or where the plaintiff in judgment, or the owner thereof or his attorney of record, directed to the clerk not to issue execution within the time prescribed. Davidson v. Wiley,
The construction of the statute given by Judge Stone finds analogy in Golding v. Hall, 9 Port. 169, declaring, in an action in trespass, where defendants severed their pleadings and separate, verdicts were had, that the plaintiff must elect against which of defendants he will have execution, as he can have but one satisfaction, and the other defendants will be entirely discharged by the payment of the damages by the one against whom the plaintiff elects to proceed. And in Blann v. Crocheron,
The averments of the bill do not show that the suit was improperly brought, or that notice or process was not served on the defendant, that no attorney for defendant appeared, and the averment that the insurance company lost or mislaid the summons and complaint by reason of no fraud, accident, or mistake, attributable to the plaintiff in judgment, is not sufficient. When the case was called, no rule of practice or of law prevented the judgment with the writ of inquiry duly executed. The plaintiff in the suit at law, appellee here, by attorney, had the right, within the law, to allow execution to issue on the judgment or to stay the same, to file his judgment, as provided by law, and perfect a judgment lien. Having taken the latter course in fixing a lien on defendant's properties subject to levy under execution, plaintiff had the right, as the owner of the judgment, to issue execution at any time within the law obtaining in the premises, or to release his lien by agreement or operation of law. Morris et al. v. Waldrop et al. (Ala. Sup.)
The judgment is averred to have been taken on April 28, 1924. The Code of 1923, with its section 7795, was effective on and after August 17, 1924. Thus Act August 9, 1915, p. 270, was the rule in the premises. The latter uses the words "unless otherwise directed," rather than the words of section 7795, "unless otherwise directed by the court or the judge presiding at the trial of the cause." The right of the stay of execution is not presented under the Code of 1923, and we are not called upon to say whether this latter provision had application in such a case as made by the bill, or only to cases or emergencies where the immediate right of the issue of execution is given a plaintiff in judgment, or whether the words "must issue" mean when the clerk is requested by the owner of the judgment. We express no *336
opinion as to the right, if such is the effect of the last statute, to take from the owner of the judgment its direction and control within the law, and invest the same in the court or its presiding judge. See Fitzgerald v. Campbell,
The bill makes no case of fiduciary relation or trust and confidence that had existed between the parties and been breached. The authorities on the phase of vacation in chancery of judgment at law were considered in De Soto Coal, M. D. Co. v. Hill,
The four months' statute was merely cumulative and concurrent with the rule prevailing in equity as to remedy. Evans v. Wilhite,
The foregoing is sufficient to show the decree of the circuit court, in equity, was free from error.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.