May v. Robertson

COLLIER, C. J. We cannot perceive that the defend [89] ants could have been prejudiced by the refusal to permit one of them to withdraw his pleas. But conceding that one of several defendants has the right to abandon his defence, it is clear that an application for the others to replead is a matter within the discretion of the court; and its refusal is not revisable on error. The act of 1840 “ relative to justices courts, and for other purposes, in certain counties therein named,” enacts that the courts of justices of the peace in Talladega and other counties, shall be holden regularly once a month, and at no other time, except to hear and determine rules against constables. Further, that all processes issued by a justice of the peace, which is not returnable to some superior court of law or equity, shall be returnable at a regular term of holding the justice’s court; “ otherwise the same shall be utterly void: nevertheless, should any suit be instituted in any of said courts within five days preceding the time of holding said court, the same shall be made returnable to the second term of the court after the issuance thereof.” It is also provided by the act that justices’ courts and constables’ sales shall be held at the muster ground in the several beats, unless there is no building, or from other cause it is manifestly inconvenient; in such case the justices and constable may designate some other place within the beat, which may be most proper. And constables’ sales shall be holden at the time and place of holding justices’ courts in the beat, unless the property levied on be of such a description as makes its removal inconvenient. Pamp. acts of 1839 and ’40, p. 1ST. The statute of 1814, directs justices of the peace to issue execution against the person or goods and chattels of the party against whom judgment is so entered, for the debt and costs, or costs alone, 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. By the act of 1822, it is provided that justices of the peace may issue executions to any county in the State against the property of a defendant in a judgment, which shall be returnable to the justice issuing it “ within any period of [90] time, not less than thirty, nor more than ninety days.” Id. 207, $ 32, 33. The words “ all processes ” are sufficiently comprehensive to embrace not only original but final process; and such would be their interpretation, if they were not controlled or. limited by the subject matter, or the connection in which they are found. In excepting process returnable to a superior court from the generality of the enactment, nothing could have been intended but attachments, or some other initiatory or ancillary process; and the proviso, that a suit instituted within five days preceding a justice’s court, shall be returnable to the second term after its institution, though perhaps not conclusive of the intention of the legislature, is certainly persuasive to show that it did not propose to interfere with the issuing and return of executions. But if the terms employed be doubtful, a strong argument may be drawn from the inconvenience of the thing. If an execution is called for but a day previous to the sitting of the court, it must be returnable to the first term; and this although it is desired to be issued to a distant county, if the act of 1840 embraces executions. Such a regulation would often result in a loss to the plaintiff, and give to the defendant a license to remove his property where it could not be made available for the payment of his debts. This view brings us to the conclusion, that it is still allowable for justices of the peace to pursue the acts of 1814 and 1822 in framing executions, at least as it respects the time of their return. We have seen that it was proved that May acted as a constable in Talladega from the date of the bond in question— lived in the same beat with Best, and in a few miles of Spence and Coker. The genuineness of the signatures of all the parties who appear to have executed the bond being proved, there was a sufficient foundation on which to rest the second charge. This point was so ruled when this cause was here at a previous term. 11 Ala. Rep. 466. The judgment of the circuit court is therefore affirmed.