Glover v. Chandler

GOLDTHWAITE, J 1. Although all the defendants appeared to the motion, yet, as the cause for it is the alledged default of the sheriff, the officer is the proper party to contest the matter with the plaintiff. [Price v. Cloud, 6 Ala. Rep. 248.] The pleas pleaded, therefore, may be considered as pleaded by him. 2. It is supposed, however, that when the motion is made at the instance of the clerk of the supreme court, the pleas, whether denying the default, or asserting a discharge, should be verified by oath. The statute provides, that “ on the trial of sucha motion, when the execution has not been returned by the sheriff, &c. and received by the clerk of the supreme court,” his certificate of certain facts shall be received and shall dispense with the production of the execution and record, “unless such officer shall deny by affidavit, sworn to, that said execution ever came to his hands, or that it was returned to the proper office by due course of mail, or that the money could not be made on the execution, as the case may be.” We think it quite evident, that no change was intended in regard to the manner of pleading, and that a new mode of proof only is provided — the certificate on the part of the plaintiff, and the affidavit on the part of the sheriff— but we apprehend either party would be allowed, notwithstanding the statute, to resort to the ordinary and usual evidence. 3. It is true, the second plea omits to state when, or by whom, or to whom, the payment was made, but we consider any of these averments unnecessary, as the term payment ex vi termini, imports a legal payment, and if it is not made to the proper person, and at the proper time, it could scarcely be said to be a payment. [Governor v. Powell, 9 Ala. 36.] 4. It is supposed however, by the replication to the second plea, that if the money was paid by the sheriff, after the return day of the’execution, that the clerk would, notwithstanding be entitled to his motion. We think otherwise. The intention of all those, and similar enactments, seem to be to [164] provide a summary remedy for the party to obtain satisfaction for an alledged neglect or default, and we can perceive no reason why the remedy should be extended to cover cases where satisfaction has actually been made and accepted. Such must be the inference from these pleadings, as it could not be truly asserted a payment had been made, which was not accepted by the other party. Whether a creditor, or the clerk, in this instance would be allowed to refuse the satisfaction offered, and retain his statute remedy for damages, as well as principal, need not be determined. Judgment affirmed.