Watkins v. Gayle

| Ala. | Jun 15, 1842

COLLIER, C. J.

It does not appear that either of the defendants sought to have the sheriff’s return corrected, but the amendment was made by him mero motu, and without leave of the Court, after a judgment had been rendered in favor of the plaintiff, upon the hypothesis that the return, as indorsed upon the writ, was not according to the truth. Under such circumstances we think the amendment was properly rejected. By certifying the execution of the process, the sheriff prevented the plaintiff from taking measures to bring in the parties who were not served, induced him to declare against all who were sued, and to take a judgment by default accordingly. The effect of an allowance of the amendment would have been to make the judgment erroneous, and consequently subject to reversal; and, perhaps, as no alias writ was sued out previous to the trial term, as to the defendants not-served with process, the cause would be discontinued, and in order to bring them in, it would be necessary to submit to a nonsuit and commence anew. Policy, we think, requires that as sheriffs necessarily possess extensive powers, strict rules should be laid down for the direction of their official acts. And where inconvenience as great as that which would result from the mere carelessness or neglect of the officer, in this case, is occasioned, he should abide the consequences. [See Means v. Osgood, 7 Greenl. Rep. 146 ; Emerson v. Upton, 9 Pick. Rep. 167, and cases there cited.]

An application by an officer to correct his return of process, in general addresses itself to the discretion of the Court, to be allowed or denied according to circumstances. In such case the decision of the primary Court is conclusive, and not subject to revision on error. We have repeatedly held such to be the laAV, in respect to amendments of th.e process and pleading, and we cannot conceive a difference in principle between these cases and the present. [See also Mandeville et al v. Wilson, 5 Cranch’s Rep. 15; Bailey v. Musgrove, 2 Serg. & R. 29; 3 Phil. Ev. C. & H. ed. 1094, and cases there cited.] Whether if the motion for leave to the officer to amend his return had been submitted by the parties not served with process, its allowance or refusal would have been discretionary with the Court, we Will not undertake to determine.

We have only to add that the judgment is affirmed.