Camp v. Watt

COLLIER, C. J. The first section of the act of 1841, “ more effectually to enforce the performance of the duties of sheriffs in certain cases,” provides, that “ where a rule or notice shall issue against any late or acting sheriff, and his securities in office, in any case now authorized by law, it 618 shall be competent for the plaintiff in such rule or notice, to recover judgment against such of the parties as service may have been effected on.” Clay’s Dig. 536, $ 14. Under the statute of 1826, it was decided, that in summary proceedings against the securities of a sheriff, the sheriff is a necessary party; and unless the notice is given to him, no judgment on motion can be rendered against the securities. Orr v. Duval et al. 1 Ala. Rep. 262. It was the purpose of the act of 1841, to remedy the defect in the pre-existing law, which this decision discovered, and to give a summary remedy against the sureties of a sheriff, or any of them, without notice to the sheriff, in all cases where they were liable by notice and motion, for the default of their principal. The Bank of the State v. Bondurant, 5 Ala. Rep. 171 ; James v. Auld and Spear, 9 Ala. Rep. 462. See also, Robertson v. Coker et al. 11 Ala. Rep. 466. The fact that the sheriff was dead, and therefore could not be personally charged for his default, can make no difference, if, as the cases cited suppose, the statute was intended to give a remedy against the sureties served with a notice, though the sheriff was not made a party. From this view it follows, that the plea in abatement does not set up any ground, which can affect the remedy the plaintiff has adopted; and that the plaintiff is entitled to proceed upon his motion against the sureties of the sheriff who have had notice, or appeared. It is needless to consider the other questions raised by the assignment of errors. The judgment of the county court sustaining the demurrer to the plea in abatement, and the consequent proceedings cannot be sustained. The judgment is therefore reversed, and the cause remanded.