70 Ala. 421 | Ala. | 1881
The execution issued on the judgment against Flouts in the justice’s court, and the other papers connected with the attachment suit brought in that court by the appellant,. Martin, were improperly excluded as evidence. W here such process is regular on its face, as the execution here was, and is issued by the competent authority, a sheriff or constable is “ justified in the execution of the same, whatever may he the defeat in the proceeding on which it was issued.”—Code, 1876, § 3041. The attachment proceeding was full of defects, which would have proved fatal in a direct proceeding; but the judgment w*as not absolutely void, and cannot, therefore, be collaterally assailed.—Barron v. Tart, 18 Ala. 668. It was the duty of the constable to execute the process, in the absence of some step taken by the defendants to arrest it, by certiorari, appeal, or otherwise. This was a motion against the constable and his sureties, for failure to make the money on the execution, which, it was alleged, he could have done by the use of due diligence.
The court erred in its ruling; and the judgment is reversed, and the cause remanded.