| Ala. | Jan 15, 1847
The act of 1807 declares, that “all persons who shall recover any debt,” &c. “ by the judgment of any court of record within this State, may at their election, prosecute writs of fieri facias,” &c.. [Clay’s Dig. 199, § 1.] This enactment, though applying professedly to all courts of record, was limited in its operation to those which were permitted to render judgments on which executions could issue, and did not necessarily confer the power to render such judgments, or in any manner interfere with the previous proceedings in a cause. The authority of a court to issue execution, depends upon the manner of its organization, and the extent of its powers, and is not a necessary sequence from the adjudication of the rights of parties before it. This is a conclusion well supported, not only by adjudged cases, but by the legislation of this State in respect to the orphans’ court. By the act of 1821, it is enacted, that “ the documents and evidence of all settlements made with executors, administrators, and guardians, shall be carefully preserved by the clerk of the county court, and the settlement entered of record; which evidence, vouchers, documents and settlements shall be good evidence in any suit for
The act of 1821, remodeled the county court, and to a great extent prescribed the duties of the judge thereof, in the exercise of jurisdiction over the estates of deceased persons, and kindred cases. Among other things, it provided, that he shall have power within the county, to take the probate of wills, &c., and to make all necessary orders for the issuing process, and other purposes, within his jurisdiction, according to such regulations as are, or may be, established by law in such cases. Each judge is required, by order in open court, to appoint certain days, not less than one day in every period of each month, for the return of process in such cases as he is competent to hear and determine in vacation, and on each return day shall attend at the court house, or place appointed for holding the county court, to determine such cases. All process issued in such cases shall be returnable to
In the case at bar, the execution was made returnable to the orphans’ court on a day appointed by the judge for the return of process ; and the notice of the motion for failing to return it, was also returnable on one of these days. The questions now raised upon the execution and motion, are, whether the former is not a nullity, or if not, whether the latter can be supported. It is indicated by the notice that the proceeding was instituted under the act of 1819, for the failure to „return the execution. That enactment, as subsequently amended, provides, that if a sheriff shall fail to return an execution to the clerk’s office from which it shall issue, at least three days previous to the term of the court to which it shall be returnable, the person aggrieved shall move against such delinquent sheriff, and have judgment against him and his sureties, &c [Clay’s Dig. 205, § 21; 206, § 22; 336, § 131.]
From this notice of the legislation upon the subject, it is sufficiently apparent that the orphans’ court was not authorized to issue an execution upon its decrees, until the act of 1830 was passed, and it is therefore argued, that as it is a court of special and limited jurisdiction, the act of 1819 cannot, by construction, apply to such executions. Waiving the consideration of this argument in the form in which it is presented, we may concede that it is not perfectly clear that an execution issued from the orphans’ court, should be returned to one of the return days appointed by the judge thereof. These return days, as we have seen, are directed by the act of 1821, to be appointed for the return of process in such cases as he is competent to hear and determine in vacation. Can these return days be regarded as so many terms of the
Conceding that the execution in the case before us was regular, and that it was the duty of the sheriff to obey its mandates, and we think the orphans’court rightly repudiated the motion. There is certainly no statute which authorizes that court to entertain an action prosecuted in the ordinary form against an officer for disobedience to its order, or any other cause; and its jurisdiction of the proceeding in question can only be supported by an unwarrantable construction of the statutes we have noticed. Such an exercise of power does not come within the appropriate jurisdiction of an orphans’ court. The trial of an issue in such a proceeding does not involve a question affecting the duties and liabilities of executors, administrators or guardians, but is independent of and disconnected with them. The form of the judgment assumes as its basis a neglect of official duty, and is not only for the amount of the execution, but for damages in addition; and this without reference to the solvency of the defendant in execution. If the party in whose favor a decree of the orphans’ court is rendered, would avail himself of the summary remedy against sheriffs, &c., he should cause his execution to be returned to a stated term of the county court. We will not say that the sheriff would even then be chargeable for a neglect to return it — that question is not necessarily presented; but we are satisfied that an execution returnable to a return day appointed by the act of 1821, is not embraced by the statute of 1819. This latter enactment, as we have said, is highly penal, and cannot be extended by construction — the orphans’ court is one of special and limited powers, which are defined by the legislature — none of which,
Whether, if the execution is regular, the orphans’ court could not coerce its return by attachment, or whether an action would not lie in the proper tribunal for the sheriff’s neglect, are questions not now presented.
We need not inquire whether this case comes within the letter of the act of 1807, which makes the unsuccessful party liable for costs. [Clay’s Dig. 316, § 20.] That statute has been practically and judicially applied to all cases at law in which the actor is unsuccessful, whether the suit be instituted by writ in the ordinary form, or whether the court has jurisdiction to give the redress sought, if the case be supported by proof. It therefore results from what has been said, that the judgment of the orphans’ court must be affirmed.