McArthur v. Dane

61 Ala. 539 | Ala. | 1878

STONE, J.

When the case of Dane v. McArthur was in this court at a former term, we corrected a clerical error in the judgment-entry, and affirmed the judgment against Rufus Dane. But inasmuch as the clerical error had to be corrected, and was corrected in this court, before the judgment could be affirmed, the result was that no damages were, or could be awarded by this court on the affirmance. Plence we said, in the opinion in that case, “ affirmed, but without damages adjudged on affirmance in this court.” — Dane v. McArthur, 57 Ala. 448; Code of 1876, § 3946; 1 Brick. Dig. 81, § 178, et seq. In the language copied, we neither said, nor intended to say that the judgment for damages in the Circuit Court was reversed or disturbed. The result of our decision was to affirm.in all respects the decision of the Circuit Court against Mr. Dane, and to reverse and annul it as against his sureties. The affirmance here rendered merged the judgment of the Circuit Court in ours, authorized execution to be issued from that court for the collection of the judgment as there rendered against Dane, and placed it out of the power of the Circuit Court to alter or change that judgment in any respect. — Norris, Stodder & Co. v. Cottrell, 20 Ala. 304; Wiswall v. Monroe, 4 Ala. 19; Stephens v. Norris, 15 Ala. 79.

The present proceedings originated on a motion to quash the execution issued on the affirmed judgment against Rufus Dane. Two reasons are urged -why we should affirm the judgment quashing the execution. First, the settlement made by Dane with McArthur, and the receipt in full given by the latter. We concur in opinion with the circuit judge that when this receipt was given, McArthur did not know, andwas not informed by any one, that he was entitled to five per cent, a month on the amount of money held by Dane, the sheriff. If he had been so informed, and had then received a less sum in full payment of the amount due, such receipt and discharge would, under our statute, have operated a full payment and acquittance of the judgment. Code of 1876, §§ 3039, 3040. Such, however, is not the present case. We think the receipt can only operate as a partial payment. The second reason urged for an affirmance of this judgment is, that the motion against the sheriff did not give him notice that the statutory damages would be claimed against him, and hence, the judgment for damages is not supported by the pleadings. It is perhaps a sufficient answer to this to say, that the original judgment of McArthur v. Dane is not before us on this appeal, and hence, we can not consider the regularity of that judgment. That judgment was affirmed in this court, and was thus, as we have seen, placed beyond the modifying power of the Circuit Court. On this appeal, it is even beyond our modifying power. But we do not think the motion insufficient. Damages, in such case, are given by statute; and when the motion was made for judgment against the sheriff for not paying over the money oh demand, this was, in effect, a motion for such judgment as the statute in such cases authorizes. Code of 1876, §§ 3284, 3356, 3357.

The judgment of the Circuit Court, quashing the execution is reversed, and procedendo awarded to the Circuit Court.