Casky v. Haviland, Risley & Co.

COLLIER, C. J. 1. We do not perceive any objection to the notice. It was sufficient to alledge that Casky was sheriff when the fierifacias was placed in his hands, without averring the continuance of ¡his official character up to the time when the same was returnable. If the determination of his office between the periods of the receipt and return of the execution, could have availed any thing in the defence, it devolved upon him to show the fact; and it was not incumbent on the plaintiff to prove the reverse. This proposition is so entirely consistent with legal analogies, that argument is unnecessary to illustrate it. 2. The act of 1807, (Clay’s Dig. 200, et seq. § 1,) prescribes the forms of returns to be made by a sheriff or other officer, to a fieri facias, and other writs of execution; but these forms have never been considered as exclusive of all others, which express the same meaning. In Barton v. Lockhart, 2 Stew. & P. Rep. 109, it was held, that the return of “ satisfied,” on a fieri facias, sufficiently indicated that the amount thereof had been received by the sheriff, at a time when it was in full force; and this although the statute return employs terms altogether different. And in Haden, et al. v. Walker, 5 Ala. Rep. 86, we decided that where a sheriff returned an execution thus, “ the defendants in this case have settled with plaintiff’s attorney, asjper order of same— costs and commissions paid to sheriff,” the fair inference was, that the execution had been fully satisfied; and that no subsequent execution could issue without the authority of the court in which the judgment was rendered. It was added, “In respect to mesne process, it has been held, that the she [320] riff is not confined to the statute form in making his return,but his indorsement upon a writ, that the defendant had acknowledged service, was sufficient to bring the party into-court, though the statute requires that a copy of the process shall be left with the defendant. Rowan v. Wallace, Judge, &c. 7 Porter’s Rep. 171. No reason occurs to us for a rule less latitudinous in the execution of final process; the more especially as in both cases the sheriff is subjected to severe inflictions, either for a false return or the arrogation of power.” See 1 Porter’s R. 30. The return in' the case before us is not only informal, but it is substantially defective. It states the levy on and sale of certain lands, and the appropriation of the proceeds to older executions ; but does not affirm that the defendants have no other property from which the residue of the execution can be satisfied. The statute referred to is explicit in making this latter requisition. Without it, the return is equivalent to stating that “no money is made,” which has been adjudged insufficient. Minor’s Rep. 48. From this view it follows, that although the county court ruled the law incorrectly, yet as the return is fatally defective, no injury has resulted to the defendants, and the mistake furnishes no warrant for the reversal of the judgment. 3. In respect to the motion by the sheriff to amend the return on the execution, it may well be questioned, whether, if it had been allowed, it could benefit the defence. See 6 Ala. Rep. 172. But be this as it may, its refusal was a matter independent of, fand collateral to the judgment in the case at bar, and cannot be revised on error. Kemp & Buckey v. Porter, 6 Ala. Rep. 172, is conclusive on this point, and shows, that if the defendants have been prejudiced by a denial of the motion, the remedy is by mandamus. 4. If the defendants had desired the court to inform the jury more particularly, what would have been a sufficient excuse for not returning the execution, they should have prayed specific instructions growing out of, and suggested by the-proof. What will constitute such an excuse must depend upon the facts of each case; and to say to the jury, that a sheriff is liable for not returning an execution, unless he has shown an excuse for the failure, is not the reference of a le [321] gal question to the jury, or a devolving upon them the appropriate duties of the court. We have repeatedly held, that a judgment will not be reversed, merely because a charge, legal in itself, may not be sufficiently full, or is calculated to mislead the jury — in such case it is proper to ask an additional or explanatory charge. 5. It certainly was not the duty of the sheriff to return the fieri facias to any one else than the clerk or his deputy. As for the persons who occasionally acted for the clerk, he was under no obligation to recognize them. But he should have used all reasonable diligence to make a due return to the clerk. Whether this was done is a question depending upon facts, and which must be solved by the jury under the ruling of the court. 6. The declarations of the sheriff were objected to on the ground, that they were made at a time when his sureties and codefendants were not present. The fact on which the objection was rested, certainly furnishes no exclusive test of the admissibility of such evidence. Perhaps the declarations constituted a part of the sheriff’s acts, in r'espect to the execution, and were admissible as entering into the res gestae. If such were their character, they were competent evidence, and there is nothing in the record to negative such an hypothesis. See 7 Ala. Rep. 830; 9 Id. 484. We must then intend, that the ruling of the county court on this point, was conformable to law, as the reverse was not shown. 7. It is not necessary, in a case like the present, that the jury should be satisfied beyond a reasonable doubt, that the facts which make out the plaintiff’s case, or defence, have been proved. All that is necessary, is, that there should be such a preponderance of proof as will convince the judgment, by applying the ordinary tests for the ascertainment of truth. And as for the distinction between diligence ordinary and extraordinary, in the return of an execution by a sheriff, we cannot very well perceive any room for its operation. But be this as it may, the facts do not show any extraordinary diligence, and as the defendants could not have been prejudiced by the refusal of the county court to charge the jury [322] on this point as prayed, the refusal is not a fatal error. This view is decisive of the case, and the judgment is therefore affirmed.