Spence v. Rutledge

| Ala. | Jan 15, 1847

ORMOND, J.

We will consider the questions raised in the order they were made in the argument. The case of Price v. Cloud, 6 Ala. Rep. 253, is decisive, that in a notice for a motion of this kind, it is not necessary to state the day when the demand was made, but that a general averment, that demand was made, is sufficient, if it sufficiently appear that the demand was made before notice of the motion, and after the money was collected. That does appear in this notice, as it states the receipt of the money by the sheriff, on the execution, and proceeds, “which monies you have failed to pay over on demand to the plaintiff.” This is certainly sufficient as a notice, although on the trial it was necessary to prove the day when the demand was made.

It is further contended, that the notice should alledge that the plaintiff resided in the county where the judgment was rendered, or that a demand .was made in Talladega county. This argument is founded on the act requiring the creditor to appoint an agent in the county, where the execution is levied, when he resides in a different county, to whom the sheriff may pay the money, &c. [Clay’s Dig. 217, § 82.] The act proceeds to declare, that if such agent is not appointed, no judgment shall be rendered for nonpayment, unless a demand be first made of a sheriff in his county, by the creditor, or by some person having a written order from him. It is obvious this is matter of defence for the sheriff, who by proving the fact, that the creditor did not reside in the county where the execution was levied, would cast on him the necessity of making proof of demand, either personally or by an order in writing.

The variance between the execution on which the jury have found the money was collected, and that described in the notice, is fatal to the judgment. As this was evidently a mere clerical error in transcribing the execution, which was in evidence before the jury, it could have been amended in the court below, but no such amendment can be made here.

A still more fatal defect in the proceedings is the omission to make proof to the court, who were the sureties of the sheriff. They were not parties to this motion, which is alone against the sheriff, and to authorize the court to render a judgment against them, the fact should have been proved to the court, that those against whom the judgment was rendered as such, were his sureties, and the record must show that this was done. [Gary v. Frost & Dickinson, 5 Ala. Rep. 638.]

An agreement has been entered into by the parties, that if the court below could amend this, judgment nunc pro tunc, from the fact that the bond of the sheriff was on file in the clerk’s office, with these persons as his sureties, it shall be considered as amended here, but we are clear in the opinion no such amendment can be made. The defect in this judgment is, the omission to state that a fact was proved which alone could give the court jurisdiction to render a judgment against them. The existence of this conclusive evidence of their suretyship in the clerk’s office, only shows that the proof could have been made, but to authorize such an amendment, it should appear by matter of record that such proof was made, though omitted to be stated in the entry of the judgment.

It remains to be considered whether, under the facts al-ledged in the notice, that a demand was made by the plaintiff, it was competent to prove a demand by the attorney of record of the plaintiff. We consider that this averment would be satisfied by proof of demand by the attorney of record. A payment to him by the sheriff, would be conclusive against the plaintiff, and it necessarily follows, that he had the right to demand payment, and that a demand by him is in law a demand by the plaintiff.

For the error previously noticed, the judgment must be reversed, and the cause remanded.