Payne v. The Governor

18 Ala. 320 | Ala. | 1850

DARGAN, C. J.

An officer, who obeys.the mandate of a writ issued from a court of competent authority, must be protected by law, so long as he acts within the line of his duty,— (Lyon v. Goree, 15 Ala. 36; Cogburn & Powell v. Elliott & Spence, 15 ib. 549,) — and if the writ has been superseded, then it is the duty of the party, against whom it issued, to have the officer notified of the supersedeas in such manner that he will be protected in refusing to proceed with the execution of the writ. These rules we think too obvious to be controverted, and applying them to the bill of exceptions, they show that the court erred. The executions, under which the wood was sold, had been issued to the constable and levied before the order for a certiorari and supersedeas had been obtained. They were served on the justice of the peace, it is true, before the sale, but he issued no order of supersedeas, nor had the constable any notice of the supersedeas, so far as is disclosed by the bill of exceptions, except in a casual conversation between him and the justice of the peace, in which the justice expressed his doubts, whether the executions were superseded or not, although he thought the order of sale which he had also issued was suspended.

We can lay down no other rule of intercourse between aeon-stable and a justice of the peace than that which obtains between the Circuit or County Court and. the sheriff; and we apprehend that it would not be denied, that the sheriff must be served with a written order, requiring him to suspend all action upon an execution in his hands, before he could be made liable for executing it. When a supersedeas is issued to him by proper authority, he is bound to obey it, and this will be his protection ; but we do not perceive how he could be protected by a conversation with the clerk, or even with the judge, in which he was told the writ was superseded, if in fact it was not. The sheriff may, therefore, require a supersedeas to him directed, before he can be made a trespasser for executing the writ, and if this be not served on him, and he proceeds to sell the property of the defendant, we see no reason, or justice, in holding the sheriff liable. This view shows that the court erred, for it is not pretended that any supersedeas was issued to the constable. He acted under executions lawfully issued, and instead of their being superseded in any manner by the justice of the peace, in the conversation shown to have taken place between them, the justice expressed the opinion that he might proceed to sell under the executions, notwithstanding the certiorari and supersedeas that had been served on him, the justice; but that he could not sell under the order of sale, which was a distinct process. Such intercourse as thi3 between the justice and his constable, cannot be considered as of an official character, and the constable is not bound to regard it. It is his duty to obey the mandate of the writ, and if this has been superseded, then he should be commanded not to execute it, and this command should be of such a character as to afford him protection.

As the ruling of the court, as shown by the bill of exceptions, is opposed to the view we have taken, the judgment must be reversed, and we do not think it necessary to examine the question, whether the declaration shows a breach of the official bond of the defendant as constable.

Let the judgment be reversed and the cause remanded.