McRae v. Colclough

| Ala. | Jan 15, 1841

COLLIER, C. J.

1, 3. — In Hill v. The State Bank, 5 Porter’s Rep. 537,it was held that in a summary proceeding against a sheriff for a failure to return.an execution, the notice should indicate by its terms, whether the judgment sought to be recovered, was such as is authorized by the act of 1807, or by that of 1819. That the liability, imposed by these statutes for such a default being different, and under each highly penal, it was the duty of the plaintiff to inform the defendant under which he would proceed; and that the want of particularity in that respect was fatal to the judgment.

The notice in the present case, in stating that the motion would be made against the sheriff and his securities, “for the amount of a writ of fieri facias,” &c., sufficiently shews, that the proceeding was instituted under the act of 1819. [Aik. Dig. 164.]

It has been repeatedly holden that the eighteenth section of the act of 1819, “to provide for the appointment of county officers, and for other purposes,” subjects a sheriff and his securities to a judgment for failing to return an execution, upon three days’ notice of the motion, having been given either to the sheriff or his securities. [Neale, et al. v. Caldwell, 3 Stewart’s Rep. 134; McWhorter, et al. v. Marrs, Minor’s Rep. 376; Broughton, et al. v. The State Bank, 6 Porter’s Rep. 48; Mason, et al. v. Parker, 1 Ala. Rep. N. S. 684.]

As the notice was not addressed to the securities, and was not to be executed upon them, it was not necessary that they should be particularized by name. This was not necessary to enable them, or the sheriff, to avail themselves of any legal de-fence, nor have the rights of either of them been in any manner affected by the omission. It was quite enough when the motion was submitted to the Court, to state upon the record the names of those against whom the judgment was .sought.— The notice describes the execution, which it alleges not to have been returned, by stating the names of the plaintiff and defendants, its amount, and the time of its issuance and receipt, and when returnable, as well as the Court from Avhence it issued. This was sufficient to have enabled the sheriff to have informed his securities of the proceeding against them, and though he had executed more bonds than one, yet, as the notice alleged the time when the execution was received and should have been returned, he would have no difficulty in ascertaining which of his securities it was intended to charge.

But it was argued for the plaintiff in error, that the notice is defective because it is not dated, because it states’that a motion will be made at a term of a court, and not on a particular day of that term, and because it is signed by the attorney for the plaintiff in the motion, instead of the plaintiff himself.

It is not essential to the notice that it should have been dated, as the return of the coroner sufficiently shews when it was served. There is no statute which requires the notice to designate the day of the Court on which the motion will be made, and the practice has not been uniform in this respect. In some notices a particular day has been mentioned, while in others it is stated that the motion will be made during the term. — - [Broughton, et al. v. The State Bank, 6 Porter’s Rep. 48; Hill v. The State Bank, 5 Porter’s Rep. 537.] Notices at the suit of a bank, generally issue in the latter form, and have been sustained ; and we can discover no sufficient reason for the application of a different rule to a case like the present.

The statute under which this proceeding is had, enacts that, the person aggrieved may move against the delinquent sheriff, “and have judgment against such sheriff and his securities in office,” &c., “upon giving three days’ notice of such motion, to such delinquent sheriff, or his securities in office,” &c. It is not expressly said whether the notice shall be given verbally or in writing, or whether it shall emanate directly from the person aggrieved, without the intervention of an agent or attorney. As, then, the act contains no prohibitory terms, we think it competent for the plaintiff in the motion to depute an attorney to represent him, either in issuing a notice or in the subsequent proceedings of the cause.

2. By the first section of the act of 1821, “concerning writs and executions” [Aik. Dig. 279.] it is made “ the duty of the Sheriffs in the several counties in this State, to return all writs and executions to the clerk’s office, from which they shall issue, at least three days previous to the term of the Court to which they shall be returnable ; and if any sheriff shall fail to return any writ or execution, according to the provisions of this act, he shall be liable to all the penalties, provided by the law now in force, for failing to return any writ or execution to the first day of the term of the Court to which they are returnable.” This act is imperative in its terms, and it is no excuse for a failure to comply with its mandate, that the plaintiff in execution did not pay or secure, or offer to pay or secure, to the sheriff, the fees which accrued to him, for receiving and returning it. There is no law which authorized the sheriff to make such a requisition, and it would, consequently, be merely gratuitous.

It is no answer for a sheriff, who has failed to perform his duty, to allege that, he has more official business than himself or his deputies could perform. Such an excuse, if tolerated in any instance, would often be made without any just foundation. In a county, in which the duties of sheriff are so oneous, the office must be profitable, and there can be no difficulty in procuring as many competent assistants, as are necessary. The Circuit Court then, properly sustained the demurrer to the fifth and sixth pleas of the sheriff.

It was argued for the plaintiffs in error, that the act of 1807, which declares that no “ person shall be prosecuted for any fine or forfeiture under a penal statute, unless the prosecution for the same shall be instituted within twelve months from the time of incurring the fine or forfeiture aforesaid,” Aik. Dig. 122. was an available bar to the proceedings against them. That as the statute of limitations need not be pleaded in a proceeding for the recovery of a penalty, the court should have visited the demurrer to the fifth and sixth pleas, upon the notice ; because it shewed that the penalty had occurred more than twelve months before the same was issued. Without stopping to inqure whether the act cited, ever was applicable to a case like the present, we are sure that it is not at this day.

By the first section of the act of 1832, “to limit actions against securities of officers,” it is enacted that “ No action, suit or motion shall be maintained against the security or securities of any sheriff, constable, or other public officer of this State, for any misfeasance, malfeasance, or other cause whatsoever, hereafter committed, unless the same be commenced, and prosecuted within six years next after the commission of the act complained of; or if the claim be in favor of an infant, or person non compos mentis, or other person disabled by law from bringing suit, then within three years after such disability to sue, shall cease to exist: provided, that this limitation shall not be extended or applied to any action, suit, or motion, which may be maintained by law, against such officer, his executors, administrators, or heirs.” The terms of this act are very broad, and extend as well to a nonfeasance, as to a misfeasance, or malfeasance. The proviso seems to indicate, that the limitation provided by the act, should not be available for the officers themselves. From this we infer, that it was not the intention of the legislature to prescribe, as to them, any limitation. It cannot be allowed, unless under the influence of express legislation, that the act in regard to fines and forfeitures, should be pleaded, otherwise the strange incongruity would follow, that the securities would be liable, five years beyond the period, when proceedings against their principal would be barred.

4. The verdict of the jury, as recited in the judgment entry, not only finds the issues in favor of the plaintiff below, but also that the facts stated in the notice are true. The jury then, respond not alone to the facts put in issue by the pleas, but affirm the truth of others, which perhaps the state of the pleading impliedly admitted. It cannot be regarded as an objection, that their verdict is too broad, if every thing essential is concluded by it. The intendment of law is certainly in favor of it. [Tippen v. Petty, 7 Porter’s Rep. 441. Mason et. al. v. Parker, 1 Ala. Rep. N. S. 684.]

The securities did not appear and plead to issue, so that it was not a fact triable by the jury, whether they were the securities of the sheriff; yet it was essential to a recovery, that this fact should have been shewn affirmatively. Now in a proceeding of this character, if the defendants in the motion do not make up an issue for the jury, the facts alleged by the plaintiff may be determined by the Court. Here there was no issue as to the fact of suretyship ; hence it was incumbent upon the plaintiff below, to prove it to the Court. This was done; and every other material fact not submitted to the jury seems to have been thus established. McWhorter et. al. v. Marrs, Minor’s Rep. 376.

5. A sheriff, against whom a recovery is sought for the failure to return an execution, cannot be allowed to object, that the execution was irregular. If it appears upon its face, to be regular, and the clerk issuing it, tacitly or impliedly recognizes it, it cannot be regarded as an unofficial paper. Anderson v. Cunningham, Minor’s Rep. 48.

The objection that the notice did not correctly describe the execution offered in evidence, and that therefore, it should have been excluded, was not well taken. The notice designates the execution as a writ of fieri fiadas, and this is sufficient to shew that it issued against the “ effects” and not the “ person.”

In McMahan & Evans v. Colclough, at the present term, it was held to be no objection to the execution, even on amotion to quash, that it issued against “William W. McMahan,” when the judgment was against “ William McMahan.” Upon the. same principle, the execution is admissible in evidence, under the notice, although the notice omits to state the initial of the middle name of that defendant.

We have seen that the press of official business did not constitute an available defence to the motion, by the sheriff. And the mere omission of the jury to take with them, from the bar, the pleas on which their verdict was rendered, 'did not author-rize the Court to reject the verdict as irregular. If the party pleading desired it, it was easy for him to have handed his pleas to the jury. Not having done so, he cannot object to their verdict for that cause.

Upon an examination of all the questions raised, we are of opinion that there is no error, and the judgment is consequently affirmed. ■