Fitzpatrick v. Branch Bank at Montgomery

DARGAN, J. In proceedings to recover judgment against a sheriff and his securities, in a summary manner by motion, the judgment entry must show every fact necessary to sustain the jurisdiction of the court, and the liability of the defendants. Clemens and Hall et al. v. The Branch Bank at Montgomery, 1 Ala. 50; Curry v. The Bank of Mobile, 8 Por. 360. In this case, the judgment entry recites, that the sheriff received $420 on the execution, on the 17th May, 1842, which was after the return day thereof, and this sum is a portion of the judgment recovered. It has been settled by the decisions of this court, that a payment to a sheriff after the return day of the execution, is not a satisfaction of the judgment; and a motion cannot be sustained against a sheriff and his sureties, for failing to pay over the same to the plaintiff. Barton v. Lockhart, 2 S. & P. Rep. 109; 3 Ib. 385. If the record had only shown the collection of the money by the sheriff, the presumption of law would have been, that it was collected at a time when, the sheriff had a legal right by virtue of the execution to receive it. But inasmuch as the day when it was received by the sheriff, is alledged [536] in the judgment entry, we cannot infer that it was received on a different day; for there is no fact stated in the record, that conflicts with the statement, that the sum of $420 was received on the 17th May, 1842, and we are bound to know, that the execution described in the record was returnable before that day. Let the judgment be reversed, and the cause remanded. Chilton, J., not sitting.