Bondurant v. Bank of Alabama

ORMOND, J. In the case of Williamson & Daniel v. The Branch Bank at Montgomery, [2 Ala. Rep. 504,] we held, that under the act of 9th January, 1841, a judgment could be obtained, by motion, against the sureties of a sheriff for failing to pay over money which he had collected, on notice to them, although [172] no notice had issued to the sheriff. It is now insisted, that the act of 1841 does not reach the case of a false return by the sheriff; that a false return implies fraud, and that such an imputation should not be fixed on the sheriff without his having had notice to appear and contest it. The language of the act in question is, “ that hereafter when a rule or notice shall issue against any late or acting sheriff and his securities in office, in any case now authorized by law, it shall be competent for the plaintiff, in such rule or notice to recover judgment against such of the parties as service may have been effected on, any law, usage or custom to the contrary notwithstanding.” It is impossible to entertain a doubt about the intention of the legislature in the passage of this act; it was passed to- remedy a defect in the existing law which was made apparent by the case of Orr v. Duval, [1 Ala. Rep. 262,] that judgment could not be obtained against the sureties of a sheriff for his default, by motion, until he was notified of the intended motion. The clear and manifest design therefore, was to give this summary remedy against the sm-eties of a sheriff or any of them, without notice to the sheriff, in all cases where they were liable in this summary mode for the default of the sheriff, they being notified of the intended motion. The statute declaring their liabilitjq [Aik. Dig. 174, § 77,] provides “thatwhenever any sheriff, &c. shall make any return on an execution, winch the plaintiff shall suggest to the court to be a false return, the court shall forthwith cause an issue to be made up to try the falsity of the return; and if the return be found false, judgment shall be rendered against the said sheriff and his securities, or any or either of them, for the amount of money specified in the execution, together with ten per centum damages, and costs of suit.” Although this statute did not in terms require a notice to be served on the sheriff, yet such was the intention of the legislature, as has been repeatedly held by this court, and unless notice be given, either after the suggestion is made to the court, or previously, that sucha suggestion will be made, no judgment could be obtained. This case, therefore, comes within the letter of the act of 1841. The plaintiff, then, had a right to proceed against such of the sureties of the sheriff as were notified of the intended suggestion in the same mode as it could have proceeded [173] against the sheriff if service of notice had been effected on him. The Court therefore erred in quashing the suggestion, and rendering judgment against the plaintiff; and its judgment must be reversed, and the cause remanded.