Noble & Bro. v. Whetstone

45 Ala. 361 | Ala. | 1871

PETERS, J.

This is a motion against the sheriff of Autauga county and his securities, for the damages allowed by law on account of said sheriff’s failure to return an execution which came into his hands, according to its mandate.

The law authorizing this proceeding is in the' following words: “Judgment, must be rendered for the plaintiff against the sheriff, coroner, or other officer, receiving or executing the writ. For failing to return an execution, the damages are twenty per centum on the judgment.” Rev. Code, §§ 3031, 3032.

There was a demurrer to the notice of motion, and also a demurrer to the answer to the motion; both of which were overruled by the court below. And the plaintiffs in the motion having declined to plead over, judgment was given on the demurrer to the answer to the motion in favor of the sheriff and his sureties. From this judgment on the demurrer, the plaintiffs below bring the case to this court.

The notice of motion, which is in lieu of the motion itself, sets out all the facts necessary to render the sheriff liable. This was enough. — 22 Ala. 116.

The answer or plea to the motion is, that the defendant in the judgment on which the execution had been issued had been declared a bankrupt, and had been discharged as such, since the rendition of the judgment, and before the issuance of the execution mentioned in the motion.

The bankruptcy of the defendant in a judgment does not render the judgment void, or forbid the issuance of an execution upon it. An execution may be issued on such a judgment, and the validity of the bankruptcy may be contested on it. — Pearsall v. McCartney, 28 Ala. 110. It does not appear, then, that the execution was illegally issued, or that it was void. It was then, not a nullity. In such a case, the sheriff has no choice but to obey its mandate. He must make return of the writ and the execution thereof, according to law. This duty the law and the form of the writ impose upon him. — Rev. Code, §§ 818, 2852, 2838. The bankruptcy of the defendant in the judgment on which execution has been issued, is no excuse to the sheriff for his failure to return it. The plea was, therefore, insufficient.

The judgment of court below is reversed, and the cause is remanded.