Patton v. Hayter, Johnson & Co.

COLLIER, C. J. By an act passed in 1835, it is enacted, that when any execution shall have been issued on any judgment, &c., within a year and a day after the rendition of such judgment, &c., which shall not have been returned satisfied in full, it shall be lawful at any time thereafter to issue execution thereon, without suing out a scire facias, or any process to revive the same. Further, when an execution shall have been sued out on any judgment, See., within a year and a day from the rendition thereof, and not returned satisfied in full, such judgment, See., shall not afterwards be presumed to be paid or satisfied, unless payment or satisfaction be entered on the record of the court in which the same shall have been rendered, &c., or unless no execution shall have issued for the space of ten years. Clay’s Dig. 206, § 28. The terms of this statute are too explicit to leave room for controversy. So far from requiring the execution issued within a year and a day to be returned “no property found,” or other equivalent return to be made, it is expressly declared, that the fact of satisfaction must be affirmed by the return; and if the execution thus sued out is not returned satisfied in full, it is competent to issue another, any time within ten years. It may then be conceded, that as the time prescribed by the statute had not elapsed between the issuing of the first and second execution of the plaintiff in error, the latter was regularly sued out. Upon this hypothesis, the question arises, whether the second execution derived any additional potency from the first, so as to continue the lien of the judgment from the period of [21] its rendition. It has been repeatedly held, by this and other courts, that if an execution-is delayed by the act of the plaintiff, it never acquires a lien upon the goods of the debtor, as against one of a junior date ; or if it does, the lien is gone as soon as the interference of the plaintiff commences, and will only become operative from the time the sheriff is required to execute its mandate. See Wood v. Gary et al. 5 Ala. R. 43. In the opinion delivered by myself in that case, it is said, “ the process is mandatory, and requires the officer to make a sum of money of the goods and chattels, &c. of the defendant, and have the money at a term therein designated, to render to the plaintiff, together with the writ, &c.; if the course of law is arrested by the direction or approval of the plaintiff, during all that time nothing is done towards enforcing the payment of the judgment, and the effect in point of fact, is the same as if no execution had issued. The legal presumption is, that the plaintiff intended to favor the defendant by suing out his execution; while he would obtain a lien prior to others, he would, under its protection, secure to the defendant the enjoyment of his property against subsequent executions. No matter how humane and benevolent the motives which might prompt to such a course, they would not relieve the elder execution from being fraudulent in law.” An execution which is fraudulent as respects those subsequently issuing, is void, and 'inoperative to affect rights which otherwise arise under them. Being fraudulent as against a junior execution, it cannot have the effect to continue the lien of the judgment as against subsequent judgment creditors, whose executions have been levied before a second fieri facias was sued out. Its efficiency being paralized by the act of the plaintiff, it cannot prejudice the diligent creditor, who has caused the property of the debtor to be first seized; but as it respects him, it is as if no execution had ever issued. It has been supposed from what was said arguendo in the opinion of a majority of the court, in Wood v. Gary et al. that the interference of the plaintiff should be fraudulent in fact, in order to impair the lien of the suspended execution ; and this conclusion, it is contended, is enforced by the Br. Bank at Huntsville v. Robinson, 5 Ala. Rep. 623, and Tur [22] ner v. Lawrence, 11 Ala. Rep. 426. Attention to the facts of these cases will show, that although some stress may seem to be laid upon the absence of fraud,asa fact, what was said upon the point was not material, and did not enter into the decision of the cases, •and cannot therefore be regarded as authoritative, even if it be in conflict with the view we have taken of the law. If then, the lien of first the execution was destroyed by the direction of the plaintiff to hold it up, no consequences prejudicial to the defendants in error would result from its having issued. But it would effect no purpose as against them— being as we have seen fraudulent in law, and of consequence void. In determining the superiority of the respective liens, the plaintiff in error stands precisely in the predicament as if no execution had issued in his favor until the levy of the defendant’s^. fa’s. This being the case as against the defendants, his judgment would be dormant and inoperative by the failure to sue out a valid execution within the year and a day, and though his judgment was prior in time, its collection would be postponed. See Conard v. The Atlantic Insurance Co. 1 Pet. Rep. 386; United States v. Morrison, 4 Pet. Rep, 124; Porter v. Cocke, Peck’s Rep. 30; Moliere v. Noe, 4 Dall. Rep. 450; Kemper v. Hock, 1 Watts’ Rep. 9; U. S. Bank v. Winston’s Ex’r, 2 Brockb. Rep. 252; Jackson v. Knight, 4 Watts & Sergt. Rep. 412; Burney v. Boyett, 1 How. Rep. (Miss.) 39; Grand Gulph v. Henderson, 5 Ib. 292; Michie v. Planters’ Bank, 4 Ib. 178; Lucas v. Stewart, 3 Smedes & Marsh. Rep. 231; Pickett v. Doe, 5 Ib. 470; Mansony & Hurtell v. The U. S. Bank and Assignees, 4 Ala. Rep. 735. It is stated in the bill of exceptions, that the first execution sued out by the plaintiff in error, has never been returned, “but was held up by the plaintiff, or is still in sheriff’s hands.” If we are to understand by this, that the proof ■showed either that the plaintiff was active in preventing the mandate of his fieri facias from being executed, or that the sheriff mero motu failed to make the money thereon, our conclusion must be the same as if the positive interference of the plaintiff had been proved. It devolved .upon the circuit court to determine which of these alternative facts was es [23] tablished, and we must intend, that that court supposed the first at least was proved, as its existence was necessary to the judgment we are called on to revise. If this hypothesis be false, it should have been negatived by the bill of exceptions, either by a positive statement,' ora recital of all the evidence submitted. It is well settled, that a bill of exceptions shall be taken most strongly against the party excepting, and that all reasonable presumptions shall be indulged by an appellate court in favor of the judgment of a subordinate jurisdiction. Under the influence of these principles we may rest our conclusion upon this point. It remains but to add, that the judgment of the circuit court is affirmed.