Henderson v. Richardson

COLLIER, C. J. A sheriff who has collected money on executions in favor of different plaintiffs, each of whom is claiming a priority, may seek the advice and direction of the court as to its application; but the order which may be rendered thereupon, cannot be regarded as conclusive upon the rights of parties whose interests are affected, or afford a warrant for the action of the sheriff; unless they are all brought before the court by notice, or voluntarily appear. When therefore, the sheriff is in doubt as to the appropriation of money collected, he should make a statement of the facts, and ask the appropriate order; and that 351 this may be obligatory upon all concerned, they should be duly notified, that they may come in, make themselves parties, and submit their claims to the court for decision. When this course is pursued, the proceeding assumes the form of a legal controversy; and any person appearing to be interested may have the matter reviewed on error. [Wheeler & McCurdy v. Kennedy, 1 Ala. Rep. N. S. 292. See also, Zurcher v. Magee, 2 Ala. Rep. N. S. 253.] In the present case the sheriff himself does not appear to have submitted a motion to the court for the purpose of his own protection, but it was made by a plaintiff in two of the executions.— No such motion was authorised by law. If the plaintiff in the executions had so elected, he might have moved under the statute, against the sheriff, to compel him to pay over the amount collect-, ed thereupon; and if judgments had been rendered against the sheriff he might have sued out a writ of error. But the order we are called on to revise is not definitive of the rights of the parties, is wholly unauthorised, and does not afford a warrant for an execution. If it had been made upon the application of the sheriff for advice, it would have been alike inconclusive, and could not have been reviewed upon any direct proceeding by him; but to have given to it the dignity of a judgment, parties should have been made in the manner we have indicated. The writ of error must be dismissed.