14 Ala. 231 | Ala. | 1848
We have repeatedly held that the levy of an attachment, followed by a judgment in the cause in which it issued, operates a lien in favor of the plaintiff, which the defendant cannot defeat by a sale or other transfer' of the property. The only question presented by the record before us, is, whether the failure of the sheriff to return an auxiliary attachment which he levied, and a declaration that he did not intend to return it, cart deprive the plaintiff of the benefit of the levy. In Wiswall v. Glidden, 4 Ala. R. 357, we held that the neglect of the clerk to docket a proceeding under the statute for the trial of the right of property for several, terms after the bond and execution were returned, did not operate a discontinuance; but the court should allow the cause to be docketed. We said, “it was certainly the duty of 'the clerk to have entered it upon his docket, but his neglect, it is conceived, cannot prejudice either party.”
In the case at bar, the sheriff should have returned the attachment according to its mandate, and it was not only competent, but on motion of either party, would have been the duty of the court to direct its return. If it had been lost, it might have béen substituted by another substantially conforming to it. Here the process was placed in the files, and as we must intend, with the appropriate return indorsed on it. Its genuineness was not controverted, but is admitted, so that no rule upon the sheriff was necessary.
The fact that a return was not made previous to the rendition of the judgment without the' connivance or consent of the plaintiff, cannot impair his lien; for whenever made, it related back, so as to give the plaintiff the same benefit that he would have had, if the sheriff had performed his duty with promptness. It is not pretended that the declaration of the sheriff, that he did not intend to return the attachment, had the approbation or sanction of the plaintiff; and cannot
