Jones v. Jefferson County

SAYRE, J. Appellants have taken an appeal from the judgment of the circuit court of Jefferson overruling their motion to quash an execution issued against them for the collection of costs in the case entitled as above. Pending the hearing of their appeal, appellants have made this motion for a writ of certiorari or other appropriate writ to require the clerk of the circuit to send up a certified copy of the execution against which their motion was directed,' and the submission now is upon the motion made in this court for the writ to bring up the certified copy. ’Conceding, but without deciding, that an execution in the hands of the sheriff is something more than a document, proof of which in the trial court would have called for an application of the rule requiring the best evidence, conceding, in other words, with the reservation heretofore expressed, that such an execution is a record (McDaniel v. Johnston, 110 Ala. 526, 19 So. 35; Ansley v. Carlos, 9 Ala. 973), it would be of no avail in this cause to require its certification to this court. The purpose and object of appellants’ motion in the trial court was to show the invalidity of the execution because more than one year had elapsed between its issuance and the judgment in pursuance of which it was issued, without revivor by scire facias. Code, § 7793. But that fact would not have sufficed to establish the nullity of the execution. It would have been necessary for appellants to show that the judgment had not been recorded, and so that scire facias was necessary, for recordation of the judgment in pursuance of section' 7874 of the Code would have served every purpose of a scire facias. Code, § 7876. This point is well argued by Thomas, J., in State ex rel. Jernigan v. Ham, 13 Ala. App. 648, 69 So. 253. In order to review the judgment against their motion to quash, a bill of exceptions should have been reserved, but no bill was reserved. Application denied. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.