Wofford v. Robinson

GOLDTHWAITE, J. — -The Circuit Court, in dismissing this motion, was probably under the impression, that the execution was not merely irregular, in consequence of the omission to direct upon its face when it should bo returned, but [490] absolutely void. If irregular only, the officer will not be allowed to show this, to excuse his own neglect. [Anderson v. Cunningham, Minor, 48; McRae v. Colclough, 2 Ala. Rep. 74; 4 Id. 516.] The statute regulating proceedings by justices of the peace, directs, that the justice shall issue executions “ returnable at a certain time and place therein mentioned, not less than twenty, nor more than thirty days from the time of issuing the same.-” [Clay’s Dig. 358, § 1.] But this we conceive to be merely directory to this class of magistrates, and we incline to thinlr, that its entire omission does not affect the validity of -the execution. In the present instance, the command of the execution, is to make due return of it to the justice of the peace, and what this due return is, was easily to be ascertained by the constable, if reference was had to the statute. The utmost discretion of the justice, when the defendant resides within his own county, is limited to thirty days, and therefore, after that time the constable was in default. No objection to the motion having been raised by demurrer, or otherwise, the Court should have proceeded to determine the motion, independent of the objection to the irregularity of the execution. Judgment reversed, and cause remanded.