Hensley v. Rose

OLOPTON, J.- — The general rule is, that a record imports absolute verity, and, unless impeached for fraud, can not be varied or contradicted by parol evidence. The return of a sheriff, when made, is conclusive and binding on him and his sureties, and on parties claiming or asserting rights under it. The purpose of the rule, as applied to official returns, is to prevent the uncertainty and confusion, in judicial proceedings, that would otherwise ensue; and it is most usually applied, when there is an attempt to invalidate the proceedings of the officer, or to defeat rights acquired under them.- — Clarke v. Gary, 11 Ala. 98. The return of a sheriff is prima facie evidence in his favor; and its fallacy may be shown by extrinsic evidence, in proceedings against him. A record procured by fraud or collusion, may be impeached by parol. — Dunham v. Roberts, 28 Ala. 285. That records may be entitled to the credit of absolute verity, they should be honest, and the courts should be vigilant to preserve their sanctity. — Thorne v. Travellers' Ins. Co., 80 Penn. St. 15. In Martin v. King, 72 Ala. 354, it was said: “It is true, that if an instrument, or record, presents the appearance of having been altered, and any ground of suspicion is presented, either by an inspection of it, or by extrinsic evidence, the party proposing to offer it in evidence is required to remove the suspicion, by accounting for the alteration.” Records are open to inspection, and not only parties, but other persons, have access to them. It would shock common justice, if, under these circumstances, a record is altered, and a party, having rights dependent upon its truth, is not permitted to show the alteration by extrinsic evidence. When the return of an officer, or any record, has been altered or spoliated, by [376] design or mistake, the most ample opportunity, and the widest scope of legitimate investigation, should be allowed for the detection of the fraud, or the discovery of the mistake. Without leave of the court, no officer or other person has any right to make any change in a record, or in any paper on the files of the court. The evidence offered by the plaintiff was for the purpose of showing that a material alteration, apparent on the writ of attachment, and a material erasure of a part of the return of the sheriff, were made after the attachment was issued and levied, and after the return was made by the officer. The evidence was not offered to vary or contradict the record, but to show the real and genuine record. — Hendricks v. Johnson, 6 Por. 472. An altered record, bearing a suspicious appearance, does not import verity, but rather fallacy. The burden is on the party, claiming under it, to explain the alteration ; and the party to whose prejudice it has been changed has the right to show the alteration, when the true and original record has been used to his wrong, and his adversary seeks to escape responsibility under cover of the altered record. The rule which excludes parol evidence, to vary or contradict a record, does not apply. A defendant in attachment has no control over the return which the officer may make, and can not be prejudiced by his omission or neglect. The return is not conclusive as to any matters in respect to which it is silent. If a sheriff levies upon and seizes property, which he fails to mention in his return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff, in which the question of what property was actually levied on is involved. So, also, in an action on the bond, for wrongfully and vexatipusly suing out an attachment, it is competent for the plaintiff in the action to show what property of his was seized by the sheriff by virtue of the writ, and by him delivered to the plaintiff in attachment, who had converted it to his own use, although the return of the sheriff is silent as to the property. If the alteration in the attachment, and the erasure in the return of the sheriff, were legally and properly made, it is competent for the plaintiff in this action to show, going to the amount of damage, the property taken from his possession under color of the writ, and which, by its delivery to, and conversion by the plaintiff in attachment, was lost to him. Such evidence tends to prove the wrongful and illegal use of the process by collusion between the sheriff ánd the party suing out the process. Revei’sed and x’emanded.