McDaniel v. Johnston

110 Ala. 526 | Ala. | 1895

Lead Opinion

McCLELLAN, J.

It did not appear by the 1st and 2d grounds of the motion to quash the execution, or at all, but that a previous execution had issued on this judgment within a year from its rendition. This one was issued within ten years after the test of such previous execution, if it in fact had issued. And that an execution had issued within the year is to be presumed in the absence of averment to the contrary in a motion to quash. These grounds of said motion were, therefore, insuffi-cieut, and properly so adjudged on demurrer. — Code, § 2922.

2. The indorsement made by the clerk on the execution, that “there shall be no exemption of personal property against this execution, ” was wholly without authority of law and hence a mere nullity, not in any manner constituting a part of or affecting the execution itself, and which, whether it was stricken from the paper or allowed to remain there, afforded no ground for quashing the execution. The better practice is to strikeout or quash the indorsement, as was done in this case.— Freeman on Executions, § 78; McGowan v. Hoy, 2 Dana 347.

3. The Code form of execution directs the sheriff to return the writ “according to law.” — Code, § 2882. The law requires the sheriff to make return of his acts under an execution to the clerk ‘ ‘three days before the first day of the return term, of the writ.” Code, § 2889. The return term of this writ was that held on the second Monday in May, 1893. — Code, § 2900. The writ directed the sheriff to return it “according to law.” It was returned according to law on February 21, 1893. The additional, unauthorized and inaccurate direction interpolated by the clerk, asserting erroneously that the return term commenced on the first Monday in May, is to be, and was on the motion to quash, properly treated as mere surplusage.

4. It has never been'the practice nor supposed to be necessary to recite in the entry of judgments, or for it to appear in any way thereby whether the action and recovery are ex contractu or ex delicto. In cases arising under section 2838 of the Code it has been the custom of trial courts and of this to look to the complaint — the character of the plaintiff’s claim — to determine whether the judgment is upon contract or for a tort.—Iron Co. v. Mangum, 67 Ala. 246; McAllister v. McDow, 26 Ala. 453; Reid v. Gordon, 2 Stew. 469; Galle v. Lynch, 21 Ala. 579; Williams v. Perkins, 1 Port. 471. And, as under section 2838 of the Code, the practice of looking to the complaint for the character of the action* with a view to allowing or disallowing a claim of exemption against the judgment accordingly as the complaint sought the recovery of a debt or damages for a tort, has been uniform and hitherto unquestioned, (Meredith v. Holmes, 68 Ala. 190; Williams v. Bowden, 69 Ala. 433; Penton v. Diamond, 92 Ala. 610; Stuckey v. McKibbon, 92 Ala. 624); and in McLaren v. Anderson, 81 Ala. 107, this court expressly refers its conclusion to the fact that the j udgment, against an execution on which a claim of exemption was asserted, was shown by the pleadings in the cause to have been rendered in an action ex delicto. And it has been expressly held, that the complaint should be looked to for the purpose of determining the capacity in which the plaintiff recovered judgment, (Rhodes v. Walker, 44 Ala. 213), and for the purpose ofidentifyingtheparties.—Collins & Co. v. Hyslop & Son, 11 Ala. 508; Flack v. Andrews 86 Ala. 395. At common law the declaration and all other pleadings in the case went on the roll along with the judgment entry, and the record thus made up was the “judgment roll.” While we have strictly speaking no “judgment roll” as that term was used at the common law, it is still required that ail the pleadings in the cause, as also the judgment entry, should be recorded, and the record thus made may well be said to take the place of the judgment roll, and to constitute the record of a judgment to all parts of which reference may be had in determining the character ancj effect of a judgment entry in the form used in our practice. We do not doubt, therefore, that it was competenc for the court below to refer to the complaint in this cause, the question being whether the defendant was entitled to exemption of personalty as against the demand of the plaintiff upon which the judgment was rendered, to determine whether the judgment was ex contractu or for a tort. — 1 Black on Judgments, §§ 122 — 124; 1 Freeman on Judgments, § 45, 50a, 75 et seq.

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Rehearing

On ReheariNo.

Upon further consideration of the application for rehearing, the court has reached the conclusion, in line with Ala. Gr. So. R. R. Co. v. Eichofer, 100 Ala. 224, McCarthy et al. v. L. & N. R. R. Co., 102 Ala. 193, and a case decided from the bench on argument at the present term, that the action in the present cause is ex contractu and not ex delicto as we formerly held. The former opinion bearing on this point and upon the question whether defendant was entitled to exemption against the judgment and execution in the case is withdrawn. This con-elusion leads to a reversal of the judgment on the issue of exemptions vd non because of the giving of the affirmative charge for the plaintiff in execution and its refusal to the defendant.

Rehearing granted. Former judgment set aside. Judgment of circuit court reversed. Cause remanded.

Reversed and remanded.