McMichael v. Branch Bank at Montgomery

COLLIER, C. J. it is allowable for a sheriff to amend his return at a term subsequent to that at which it is made, and the amendment will relate back to the proper return day, (Malone v. Samuel, 3 Marsh. Rep. 350;) and it has been permitted, even after the lapse of several years. Thatcher v. Miller, 11 Mass. Rep. 413 ; Hutchins v. Brown, 4 H. & McH. Rep. 498. So such amendments have been permitted after the sheriff went out of office, and after a writ of error sued out to reverse the judgment. Gay v. Caldwell, Hard. Rep. 63; Irvine v. Scobee, 5 Litt. Rep. 70; Adams v. Robinson, 1 Pick. Rep. 461; Wilson v. Ray, Charl. Rep. 109; Rucker, v. Harrison, 6 Munf. Rep. 181; Boyce v. Watson, 3 J. J. Marsh. Rep. 500. An amendment has been permitted after the officer’s death, on motion of his representatives. Fowble v. Raybergh, 4 Ham. Rep. 45. And it has frequently ly been held competent for parteis or purchasers to apply to the court to have a return amended. See Fowble v. Raybergh, supra; Clarke v. Belmear, 1 G. & Johns. Rep. 443; Williams v. Rogers, 5 Johns. Rep. 162. But such amend-mendments will not be permitted to affect the rights which have vested subsequent to the return; and if they are allowed, the intervening rights of third persons will not be prejudiced. Emerson v. Upton, 9 Pick. R. 167; Freeman v. Paul, 3 Greenl. Rep. 260; Davidson v. Cowan, 1 Dev. L. R 304; Means v. Osgood, 7 Greenl. Rep. 146; Bowman v. Stark, 6 N. Hamp. Rep. 459. These propositions are supported by the decisions of this court. See Brandon v. Snow & Cunningham, 2 Stew. Rep. 255; Woodward v. Harbin, 4 Ala. Rep. 534; Watkins et al. v. Gayle, use, &c. Id. 153; McGehee v. McGehee, 8 Ala. 86; Hodges v. Laird, 10 Ala. 499 678; Cawthorne v. Knight, 11 Ib. 268 ; The Governor &c. v. Bancroft, at this term. In the case before us, a motion was submitted to set aside the sheriff’s return to the fieri facias upon a suggestion that the judgment had not been “settled in bank,” or otherwise satisfied : of this motion, notice was given to the defendant, and the truth of the suggestion made manifest by proof.— The record does not inform us of the character of the evidence, and- it must therefore, in favor of the ruling of the county court, be intended that it was such as was appropriate. If it was indispensable to produce the testimony of the sheriff, we will intend that it was before the court; and if his evidence, from a defect of memory, or other cause, was insufficient, it must be presumed that it was aided by such additional proof as furnished an ample warrant for vacating his return. We have seen that it is allowable to amend the return of process, not only upon the motion of the officer making it, but at the instance of his representatives, or of a party, or even of a third person who has an interest in the matter; and that amendments have been permitted years after the return was made. In Rucker v. Harrison, supra, the sheriff was allowed to amend his return seven years after its date. No third person can be prejudiced by the amendment, and no reason suggests itself why it should have been refused. We cannot therefore pronounce against the ruling of the county court; and its judgment is consequently affirmed.