Albertson, Douglass & Co. v. Goldsby

WALKER., J. Tho attorneys at law of the plaintiffs in execution twice directed a postponement by the sheriff of the sale of personal property levied on, and ordered that the property should remain with the defendant, and that he should not be required to give a delivery bond. Those two postponements extended from December to the next July. Immediately after the expiration of the two periods of delay above named, a venditioni exponas issued, and the sheriff was directed to postpone the sale under it for about six months. At the termination of this last delay, a second venditioni exponas issued, and the plaintiffs’ attorneys ordered the sheriff to delay the sale for nearly two months. We think that the lien resulting from the delivery of the plaintiffs’ execution, or from its levy, was lost by the several postponements of the sales under the execution and writs of venditioni exponas, by order of the plaintiffs’ attorneys. — Patton v. Hayter, Johnson & Co., 15 Ala. 18; Br. Bk. at Montgomery v. Broughton & Duprey, 15 Ala. 132; Wood v. Gary, 5 Ala. 43; Campbell v. Spence, 4 Ala. 551; Leach v. Williams, 8 ib. 764; Berry v. Smith, 8 Washington’s C. C. R. 60. The authorities, which are above cited, settle the law in this State, as to the effect of the delays directed by plaintiffs’ attorneys, in defeating the liens of the execution, in favor of junior execution creditors. There can be no reason for a discrimination between a junior execution creditor, and one who holds under a mortgage, such as that of the claimant in this case. — Berry v. Smith, supra. The lien of the mortgage having attached pending the constructively fraudulent delays, the execution creditor who directed those delays must be postponed for it. [717] It may be conceded, without affecting the result, that the claimant, by his consent to the first postponement of the sale under the execution, is estopped from saying that such delay is constructively fraudulent. The second order for a forbearance to sell under the execution, and the orders for the postponement of the sale under the two writs of vendi-tioni exponas, together with the fact that the delays thus ordered extended through a period of about eight months, during all which time the property was, by special direction, permitted to remain with the defendant in execution, without bond, are abundantly sufficient, of themselves, to defeat the plaintiffs’ lien, in favor of the claimant; and to none of these last acts did the claimant’s assent extend. It is contended for the appellants, that an attorney, as such, has no authority to direct the delay of sale, after a levy of his client’s execution. It must be conceded that that position is sustained by many authorities, both English and American. — Banks v. Evans, 10 Smedes & Marshall, 58; Doe v. Ingersoll, 11 ib. 273; Union Bk. of Tenn. v. Gavan, 10 ib. 344; Dunn v. Newman, 7 Howard’s Miss. 582; 1 Comyn’s Digest, “ Attorney,” (B. 10.) The decisions are not altogether consistent; and most of them rest upon the idea that an attorney’s authority ceases with the rendition of the judgment. In most of the cases, it is conceded that the attorney may receipt for the money duo on a judgment; and it has been held, in England, that he might acknowledge satisfaction, although he had received nothing. — Comyn’s Digest, supra; Wycoff v. Bergen, Coxe’s (N. J.) R. 214. In this State, there is a plain manifestation of the legislative intent, that the authority of the attorney shall continue after the rendition of judgment. The statutes from which that intent is inferred, are those which provide that the sheriff may give notice of the requirement of an indemnifying bond, when the defendant’s title to the property levied on is doubtful, to the plaintiff’s attorney; that an officer, who has made money upon an execution, shall give notice, within ten days, to the plaintiff, or his attorney, if resident in the county; that the plaintiff, or his attorney, may make the affidavit on which a garnishment issues after judgment; and that for a failure to pay over money, on demand of the plaintiffs attorney, the [718] sheriff subjects himself to a rule. — Clay’s Digest, 210, § 50; Code, §§ 2444, 2451, 2471, 2472, 3602. The denial of the attorney’s authority after the rendition of the judgment, would do violence t,o the statutes referred to. They evidently contemplate, that the attorney is to exercise a general superintendence over the process issued to enforce the payment of the judgment, which he has obtained for his client. The notification by the sheriff, that a bond of indemnity is required, has the effect of signifying to the party that the levy will be abandoned, unless the indemnity is given. Why permit such a notification to be given to the attorney, if he does not represent the plaintiff, in directing the proceedings under the execution? A similar question might be significantly asked, in reference to each one of the other particulars in which the attorney’s authority is recognized by the statutes. This court, in its previous decisions, has, in effect, asserted the authority of the attorney over the proceedings for the collection of a judgment. In McClure v. Colclough, 5 Ala. 65, it was decided, that the sheriff was protected from liability, for the omission to return an execution at the time appointed by law, by the fact that he acted under the order of the plaintiff’s attorney. If the attorney had no authority to'stay the sale in this case, it would follow that the sheriff would be liable for the omission to sell. It cannot be held that the sheriff would not be protected by the order of the attorney in this case, without disregarding the decision in McClure v. Colelough, supra; for it would be most unreasonable to say, that the attorney has authority to direct the sheriff not to return an execution, but is without authority to delay the sale under an execution». The decision in McClure v. Colelough is, we think, sustained in principle by Walker v. Goodman & Mitchell, 21 Ala. 647, and Crenshaw v. Harrison, 8 Ala. 342. See, also, Kirksey v. Jones, 7 Ala. 622; Hope v. Oswitchee Company, 5 Ala. 629. Guided by the spirit of our statutes, and the previous decisions of this court, and by what we conceive a sound policy, we conclude, that the attorney’s authority does not cease with the rendition of the judgment, but continues for the purpose of directing the proceedings under the process of the court, [719] for the collection of the judgment. This authority would be subject to revocation by the client, and could not override the control by the plaintiff himself of the proceedings under his judgment. It results from what we have said, that the charge to the jury, upon the evidence, was properly given; and the judgment of the court below must therefore be affirmed. Several other questions were argued by the counsel, which are not considered in this opinion, because the view which we have taken of the case is decisive of it.