Maxwell v. Pounds

116 Ala. 551 | Ala. | 1897

Lead Opinion

BRICKELL, C. J.

1. This is a summary proceeding by notice and motion, under the statute, (Code of 1886, § 3Í01; Code of 1896, §3769), to recover the penalty imposed on a sheriff for a failure to return an execution ; and the primary question is, the sheriff having died, whether the proceeding may be maintained against the sureties on his official bond, or such of them as may be served with notice. All summary proceedings must bé taken and pursued in strict conformity to the statutes creating them — by construction they will not be extended beyond the terms of the statute. Originally the proceeding could have been pursued against the sheriff only, and if the fact of suretyship was proved, a judgment could be obtained against the sureties without notice to them. — McRae v. Colclough, 2 Ala. 74. In Orr v. Duvall, 1 Ala. 262, it was decided, that the proceeding could not be pursued against the sureties in the absence of the sheriff — he was'an indispensable party defendant — and the fact that he had fled the State would not authorize the court to proceed summarily against the sureties. This decision led, doubtless, to the enactment of the act of 1841,’declaring that “when a rule or notice shall issue to any late or acting sheriff, and his securities in office, it shall be competent for the plaintiff in such rule or notice, to recover judgment against such of the parties as service may have been effected on.”— Clay’s Dig. 536, § 14. The enactment was substantially incorporated in the Code of 1852 and in each of the subsequent revisions or codifications of the .statute, and now forms part of section 3096 of the Code of 1886, (Code of 1896, § 3764), as one of the general rules applicable to all the summary proceedings given against executive or ministerial officers, or officers acting in that capacity. The plain purpose of the statute, read in the light of its history, is, that the proceeding may be maintained. and pursued to j udgment, against any of the parties, principal or sureties, who may have received notice, and this is the force and meaning of its words. Such was the construction of the statute in Reed v. Summers, 79 Ala. 522; Ex parte Wilson, 54 Ala. 296.

2. The statute, (Code of 1886, § 2885 ; Code of 1896, § 1883), requires that “at the foot, or on some part of the execution, the clerk must state, in intelligible words and figures, the several items composing the bill of costs ; and without such copy of the bill of costs, the execution is illegal, and shall not be levied.” The execution the sheriff is charged with a failure to return had at its foot, or indorsed upon it, a bill of the costs. The fees of the clerk and the sheriff were enumerated and printed, and it is hot claimed the services for which they are charged were not rendered, nor that the fees were in excess of the fees allowed by law. The aggregate of the fees of witnesses is stated, without the names of the witnesses. We are of opinion the execution was regular, satisfying the requirement of the statute. Perhaps, the writ would have been more formal, if the bill of costs had contained the name and fees of each witness. But the purpose of the statute is, to inform the party against whom the execution issues of the amount of the costs with which he is charged, and the particulars composing it. The statute should be fairly construed, and when the bill of costs is not calculated to mislead, the writ is not offensive to the statute. Whether plaintiff, or defendant, the party knows, or is presumed to know, the witnesses attending, and stating the aggregate of the fees allowed them, without their names, and the fees allowed each can not mislead or prejudice them. The bill of costs, however precise and formal it may be, is not conclusive. If error intervenes, it is curable by a retaxation of the costs, and there should not be a close construction of the statute, affecting the regularity of the writ, and rendering proceedings under it, subject to vacation. But if there was irregularity in the execution, it can not be conceded the sheriff was excused from returning it according to its mandate. A return, stating as the cause for not executing it, the irregularity now imputed, the plaintiff was entitled to, that in the subsequent issue of execution, a like irregularity would be avoided.

We find no error in the record, and the judgment is affirmed.

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Rehearing

On Application For Rehearing.

BRICKELL, 0. J.

Upon an application for rehearing,

■ after a closer scrutiny of the original execution, which has been transmitted to this court, my brothers are of the opinion, that it is illegal, and under the influence of section 2885 of the.Code of 1886, (Code of 1896, § 1883), void, and I will not now dissent from tliat conclusion. Assuming this to be true, I cannot, for the reasons already stated, concur in the conclusion that this illegality relieved the sheriff from the duty of returning it according to its mandate. In obedience to the opinions of my brothers, the rehearing is granted, the judgment of affirmance is set aside, and. a judgment will be here rendered, dismissing the motion at the costs of the appellee in. the circuit court, and the appellee will pay the costs of appeal in this court and in the circuit court.

Reversed and rendered.