Wood v. Russell, 22 Ala. 645

Wood v. Russell

22 Ala. 645 | Ala. | 1853

LIGON, J.

In the case of Hall v. The State, 15 Ala. 431, it was held, that when two-writs of scire facias on a forfeited recognizance are returned “ nihil,” by the sheriff of the county in which the recognizance was entered into, it is equivalent to service; but two such returns by the sheriff of a different county, will not have the same effect. It is true, this decision is based on the requirements of the twenty-fifth section of the eighth chapter of the Penal Code, (Clay’s Dig. 442 § 25;) *646but the statute only prescribes what the rule of practice, arising from the separate and independent jurisdiction of the courts of the several counties in the State, would seem to demand. Bach county has its own executive officer, who alone is authorized to serve process within its limits; and the resident of one county, who is a freeholder, is not to be sued in a county different from that in which he resides, except in particular cases, and particular modes of proceeding. Olay’s Digest 342 § 163.

The summons of garnishment may go to any county in the State; but if the garnishee is thus sought and found by the plaintiff in attachment, in a distant county, and he fail to appear and answer, thus subjecting himself to a judgment nisi, he is not liable to judgment final, until scire facias shall be duly “executed and returned” by the sheriff of the county in which he resides, or in which he was summoned as garnishee. Grimke v. Marant, 2 Brevard 202; Woodfork v. Broomfield, 1 Murph. 187; Bice v. Talmadge, 20 Term. 378.

In this case, the summons of garnishment was served on the plaintiff in error in Mobile county, and the writs of scire facias are returned “nihil” by the sheriff of Macon county. This cannot be regarded such due execution and return, as is required by law, (Clay’s Digest 59 § 20;) and consequently will not support the judgment final in the court below.

Let the judgment be reversed, and the cause remanded.

Note. — This opinion was delivered at the January term, 1852, but by accident did not come to the hands of the reporter.