Carlisle v. May

SOMERVILLE, J. The question raised by the action of the court, sustaining the demurrer to the bill, is embraced in the inquiry, as to what constitutes “the lapse of an entire [504] term,” in the case of executions issued on judgments or decrees of the probate court, within the meaning of section 3210 of the present Code (1876). It is provided by the latter section, that an execution is a lien, in the county within which it is received by the officer, on the lands and personal property of the defendant, subject to levy and sale, from the time when the writ comes into the hands of the sheriff, and continues only so long as it is “ regularly issued and delivered to the sheriff without the lapse of an enti/re term.” — Code 1876, § 3210. So, it is also provided that a writ of execution, which has been “ issued and received by the sliei’iff during the life of the defendant, may be levied after his decease, or an alias issued and levied, if there has not been the lapse of cm m,tire term, so as to destroy the lien originally created.” — Code, 1876, § 3213. The regular terms of the probate court are fixed by statute, and are required to be “ held at the court-house of each county, on the second Monday in each month.”- — Code, 1876, § 701. All executions and other process, issuing from the court of probate, may be made returnable, if no other day is provided by law, to any regular term of such court, “ not less than three nor more than six months after such issue,” or to any special term within the same period. — Code, 1876, § 710. It is contended that the phrase “ entire term,” as applicable to probate courts, must be construed to mean not more than six months after the last or preceding execution was made returnable. We are unable thus to construe the statutes on this subject, when all taken together, as importing such a meaning. An entire term means simply “ from one session of the court to another” — the period of time intermediate between two regular terms as fixed by law.—Gamble v. Fowler, 58 Ala. 576. The plain purpose of the statute is to exact diligence and prevent laches on the part of execution creditors. The liens of their executions can only be kept alive on condition that they are regularly issued in the manner and at the times, or intervals prescribed by statute. While as much as six months may be permitted to elapse between the issue and the return of an execution from the probate court, yet, after the advent of the return term, a néw occasion arises for the repetition of due diligence. The execution must again go into the sheriff’s hands without allowing an “ entire term” to elapse — that is, the entire interval between two regular monthly terms, such as are fixed by law. The policy of the law is to require executions to be practically in the hands of the sheriffs until they are satisfied. The defendant in execution, Gardner, is shown to have died on the 29th day of September, 1882, when the execution was [505] in the sheriff’s hands. There was then a lapse extending from the second Monday in December, 1882, to the 21st of April, 1883, being a period of more than four months. Four entire terms of the probate court were thus allowed to elapse without the issue of any'execution. This operated, in our judgment, as a loss of the lien. — Code, 1876, § 3213. The conclusion, thus arrived at, is the only one which we can reach upon any sound principle of construction. The case seems to be a acisus omissus in the law, possibly needing legislative attention. The analogies sought to be drawn from the orphan’s court, and executions formerly authorized to be issued from it, do not, in our opinion, affect the construction which we have above adopted. The demurrer to the bill was properly sustained, and the decree of the city court is affirmed.