Parks v. Bryant, 132 Ala. 224

132 Ala. 224 | Ala. | 1902

SHARPE, J.

— This appeal is from a judgment of tbe city court sitting in equity rendered on a motion made against tbe register in chancery who is ex officio register in tbe chancery side of tbe city court, and tbe surety on his official bond, for an alleged default on the part of the register in failing to pay over proceeds of property sold by decrees of that court and received by tbe present register in part from bis predecessor in office and in part pursuant to a sale made by himself.

Authority for enforcing tbe obligation of a register’s bond by a summary motion is found alone in chapter 106 of the Code. Section 3767 therein designates the forum for such suits by providing that “when tbe motion is against a sheriff, coroner, clerk, or other officer of the court, or their sureties, the motion must be made in the circuit court of the county in which such officer was acting officially at the time of the default or in the court to which the process was returnable, when the default consists in the failure to execute or return process, or to pay over money collected thereon; and in all other cases not specially provided for, the motion must be made in the circuit court of the county in ’which the person moved against resides; or if he has no permanent residence, then in any county where he may be found.”

'This section does not purport to confer jurisdiction on a court of chancery where the default has no connection with the process returnable to that court. The term process is used in this section in its ordinary legal sense which renders it synonymous with writs; as in the constitution where it is directed “all process shall be styled The State of Alabama,” and in section 3739 of the Code which requires the sheriff to execute all. “process and orders of the courts of record of this State.” Decrees of sale are not process and moneys received by tire register merely as the custodian of sale proceeds belonging in court are not moneys collected under process within the meaning of section 3767. This appears even more plainly from the fact that decrees have not the quality of being “returnable” without which there could be no pretext for invoking a chancery court’s jurisdiction in such cases.

Whether in view of the legal character of the the right of a jury trial, and other featui*es of these statutes referred to by this court in Thompson v. Acree, 69 Ala. 178, a chancery court can have cognizance of any case arising under the chapter providing for summary remedies, is a question briefed by counsel but vdiich is not necessary to the proper disposition of this cause.

The cases wherein a register’s bond may be proceeded on by motion in a proper forum are specified in article 4 of the chapter referred to, and there no mention is made of default in respect of the payment of moneys collected under process: This probably for the reason that the sheriff: and not the register is the official charged with the duty of executing process. Such remedies being purely statutory must be pursued in strict conformity with the statute creating them and cannot be extended by construction to cases not specified in the statute.—Chandler v. Francis Vandegrift Shoe Co., 94 Ala. 233; Leinkauff v. Tuscaloosa, etc., Co., 105 Ala. 328.

The city court sitting in equity was without jurisdiction of the subject matter of this suit, and, therefore, without review of its action the judgment will be reversed and the cause will be here dismissed.

Reversed and rendered.