Slater v. Carter

35 Ala. 679 | Ala. | 1860

A. J. WALKER, C. J.

It is believed to be a practice very generally prevalent, and of long and unquestioned use in this State, tor the clerk to subscribe his name to the ordinary initial process of common-law suits, with the names of the parties, and other particulars which im dividualize the ease, in blank; and for the plaintiff’s attorney, under a verbal authority from the clerk, to fill up those blanks, and hand the writ to the sheriff. The long continuance of this practice, without controversy of its correctness, gives the sanction of the bar generally to its legality, and affords satisfactory proof of its harmless operation. Such a practice is supported by authority, which, though not conclusive, is entitled to great weight, and ought not to be disturbed, unless clearly wrong.

Section 651 of the Code authorizes the clerk of the circuit courts to appoint a deputy, “with full power to transact all the business of such clerk and requires that such deputy should first take a prescribed oath. A similarstatute has existed in this State since 1836. — Clay’s Digest, 146, § 19. This statute has never been understood by this court as prohibiting the authorization of one to discharge some particular duty, (not the general business of the clerk’s office,) without taking the prescribed oath. — McMahan & Evans v. Colelough, 2 Ala. 68; Yonge v. Broxson, 23 Ala. 684; McDonnell v. Br. Bk. at Montgomery, 20 Ala. 313. We must place the same construction upon section 651 of the Code which our predecessors placed upon the act of like terms which preceded it. We decide, therefore, that there is no statutory "prohibition to the conferring upon one, who has not taken the prescribed oath, authority to fill up the blanks in the writs as above specified.

It is true that the clerk is required to issue the writ; but surely this duty can be performed through the agency of another, upon the same principle upon which the blanks may be supplied through such agency after the signature is affixed.

In the case of Worsham v. Goar, (4 Porter, 441,) it was decided not to be permissible for the clerk to authorize the insertion of the names of commissioners by "another, after the commission had left the office. This decision is placed upon the language of the statute, which requires that the commission should issue to the commissioners. The coui’t evidently regarded the statute as conveying an implied prohibition to the designation of the commissioners after the commission passed from the clerk’s office for execution. The reason, therefore, upon which this decision is placed, does not apply in the construction of a statute not containing the same language. Besides, the nature of the duty of designating commissioners, and its liability to abuse when intrusted to the hands of others,. who might be interested, doubtless had its weight in influencing the court to seek for a construction of the statute, which would justify the decision made. That decision has, no doubt, a very healthful practical operation, and we do not intend to detract from its authority; but we cannot allow to it the influence upon the decision of this case which is claimed for it by the counsel for the appellant. ¥e decide that, upon the facts in this case, the process was not illegal, and that it was the sheriff's duty to execute it.

[2.] The proposition, as to the effect of the evidence upon the question whether the process was received by the sheriff, was not asserted alone in a distinct charge, but together with a proposition upon another point, which we have already decided was not correct. The different propositions were asked together, as parts of the same cbmprehensive charge; and there was no error in a refusal of the request, although one of the propositions may have been correct, if the other was erroneous. It is therefore not necessary to examine the proposition as to the effect of the evidence.

The judgment is affirmed.