Walker v. Hunter

R. W. WALKER, J. The appellant moved against the sheriff and his sureties, for the failure of the former to make the money on an execution which is described in the motion. In support of the allegations of her motion, the appellant introduced in evidence the execution which is set out in the record; and she will not now be heard to say that it does not correspond with her own description of it. The execution is described in the motion as having been issued from the office of the clerk of the circuit court of Chambers county, on 14th April, 1858, “in favor of Maria Walker, executrix of John H. Walker, deceased, plaintiff, and against Benjamin L. Goodman, Robert Mitchell, James S. Mitchell, and James E. Reese, defendants, for the sum of $3,784, due by original judgment rendered the 26th March, 1853, and the further sum of $378 as damages awarded by the supreme court, with [130] interest thereon from the 26th March, 1853, and $190 57, costs of suit, returnable to the term of said circuit court to be holden for said county of Chambers on the second Monday in September, 1858.” The writ of supersedeas served upon the sheriff, refers upon its face to the petition, fiat, and supersedeas bond; and we think that the sheriff had the right, in his defense, to resort to these for the purpose of supplying any want of fullness in the description which is given of the execution in the supersedeas itself. — See Welch v. Jones, 11 Ala. 661; Morrison v. Wright, 7 Porter, 67; Satterwhite v. State, 28 Ala. 70. While it may be true that the sheriff is not bound to look beyond the supersedeas served upon him, and could not be made liable for proceeding with the execution unless it was described with reasonable certainty in the supersedeas, (Payne v. Governor, 18 Ala. 322;) it does not follow, that in case he has obeyed the supersedeas, he may not help out the defective description of the execution in the supersedeas, by reference to the petition, fiat and bond to which it refers, and thus show, in his defense, that the execution in his hands, and on which he has suspended proceedings, was that to which the supersedeas was in fact applicable. — See 31 Ala. 678. In order to the protection of the sheriff, it is not necessary that the supersedeas, or the petition and bond referred to by it, should descz’ibe the jndgznent upon which the execution issued with the same accuracy as is required in injunction azid appeal bonds. These bonds affect the judgment itself, not simply the execution issued on it; and, on their breach, they have the force and effect of statute-judgments. In such bonds, a misdescription, in an essential particulai’, of the judgments upon which they operate, is fatal. — Wiswall v. Munroe, 4 Ala. 9; Satterwhite v. State, 28 ib. 69; Dumas v. Hunter, ib. 688. But a supersedeas, such as that which was issued in this case, is not intended to operate upon the judgment, but only on a particular execution in the hands of the sheriff'. The officer is protected in obeying it, if the writ, either by itself, or in connection with the ‘ petition, fiat and bond to which it refers, shows with reasonable cer [131] tainty, that the execution in his hands is that to which the supersedeas is applicable. The only essential matters in the-description of an execution, are the parties, the amount required to be made, the court from which, and the time when it was issued. The petition avers the recovery of the original judgment at the spring term, 1853, of Chambers circuit court, in favor of the appellant, against Benjamin L. Goodman and Robert Mitchell, for $3,784, besides costs; — that said judgment was taken to the supreme court, where it was affirmed, with ten per cent, damages thereon; and that “the clerk of the circuit court of Chambers county has issued an execution on said judgment, against the petitioners, (Benjamin L. Goodman and Robert Mitchell,) as principals, and their securities, James S. Mitchell and James E. Reese, for the amount of the said judgment in said circuit court, and costs, and ten per cent, damages on said judgment”; and that there is but one execution in the hands of said sheriff to which the petitioners are parties. The supersedeas, bond describes the execution as having been issued by the clerk of the circuit court of Chambers county, on the 14th April, 1858, “ in favor of Maria Walker, executrix of John H. Walker, against Benjamin L. Goodman, Robert Mitchell, James S. Mitchell, and James E. Reese, on a judgment obtained by Maria Walker, executrix, &c., against the said Benjamin L. Goodman and the said Robert Mitchell, in our said circuit court, then and there held for said county on the 2d Monday in March, 18.53, for the sum of $3,784, together with costs of suit, and the further sum of $378 40, damages adjudged by the supreme court.” It is thus shown, that the parties to the execution, the amount required to be made, the court from which, and the time when it issued, are all correctly described in the petition and bond. In all essential particulars, the description of the. execution there given conforms to that which is given in the motion of the plaintiff; and she will, therefore, not be heard to question its correctness. Although the petition may give an inaccurate account of the manner in which some of the defendants became par [132] ties to the execution, this does not vitiate the description of the execution itself. In reference to the parties, amount, the court from which, and the time when it was issued, there is an exact correspondence between the execution described and that which was in the sheriff's hands; and when it is further added in the supersedeas and petition, that the execution to be superseded is the only one in the sheriff’s hands to which the petitioners are parties, there is no doubt that the execution which is set out in the record, was designated with reasonable certainty as that to which the supersedeas was applicable. The court, therefore, did not err in instructing the jury, that if they believed the evidence, they must find for the defendant. This is the only assignment of error insisted on in the argument of counsel, and we therefore notice no other. It is proper to notice that the supersedeas is a common-law, not a statutory supersedeas. — Campbell v. May, 31 Ala. 570. Judgment affirmed. A. J. Walker, C. J., not sitting.