Chandler v. Henry

STONE, O. J. This case must be reversed for the error of the court in ruling that plaintiff was entitled to a judgment for ten per-cent, of his execution, increased by the accrued interest. The statute is highly penal, and under it no greater recovery can be had than its terms express. Ten per-cent, of the face, or principal of the execution, is the limit of the penalty the law imposes for a sheriff’s failure “to indorse on an [273] execution [coming into his hands] the true date of its delivery to him.” — Code of 1886, § 3105. If the plaintiff suffers any actual injury by the omission, the statute gives him the right to maintain an additional action therefor. — lb. It is contended lor appellants, that the record fails to show the sheriff’s sureties had notice of the motion, and that the judgment should be reversed on- that account. There are several answers to this objection. First, “A motion entered on the motion docket, in term time, is sufficient notice to all officers of the court and their sureties.” — Code, § 3097. That was done in this case. Second, the judgment-entry and bill of exceptions both show that issue was made up between the parties. Tais, uurebutted, brings all the parties before the court. Third, the case having been tried on issue joined, and before a jury, the rule as to summary or statutory jurisdictions does not apply. The same intendments will be indulged as in •ordinary suits before courts of general jurisdiction.—King v. Armstrong, 14 Ala. 293 ; Rutherford v. Smith, 27 Ala. 417; Shouse v. Lawrence, 51 Ala. 559. There is a graver objection in this case. The execution was issued and placed in the hands of the sheriff of Etowah county, November 12,1888. No indorsement was placed upon it by the sheriff of that county. It carried with it no evidence that it had ever been in Chandler’s possession. Between that time and December 24, 1888, Chandler, at the request of Henry, the plaintiff, transmitted the execution to the sheriff of St. Clair county, to be collected by him. Chandler testified that this occurred a few days after the execution came to his hands. The sheriff of St. Clair county indorsed upon it, “Deceived in office December 24,1888.” . On December 29, 1888, he, the St. Clair sheriff, levied the execution on “one black horse mule,” and indorsed the levy on the execution. On January 7, 1889, the sheriff of St. Clair county, “at the instance •of the plaintiff,” released the levy on the black horse mule. By some proceeding, the same execution, with the St. Clair .sheriff’s indorsements upon it, got back into the hands of Chandler, sheriff of Etowah, who, on February 14, 1889, entered upon it a levy on forty acres of land, describing it by government survey numbers. On March 22, 1890, he returned the execution “for want of time to sell and make' the money.” It would be difficult to crowd into the history of one execution more irregularities than have attended -this one. First: If the sheriff Chandler had indorsed on the execution that it had been received in office by him, this would have destroyed its authority and power as a process in the hands of the sheriff, of another county, and would have made it the duty of Chan [274] dler to retain the execution, and return it to the office from which it issued. Hence his failure to indorse his receipt of the execution gave to Henry the authority he had for having it forwarded to the sheriff of St. Clair county. — 1 Brick. Dig. 898, § 128. ' Second: If Henry, by having his execution in Chandler’s hands, acquired any lien or liens in Etowah county,, taking control of the process, and having it transmitted to another county, would have been a stay of execution by him, and would have subordinated his lien to that of a junior execution or incumbrancer.—Patton v. Hayter, 15 Ala. 18; Albertson v. Goldsby, 28 Ala. 711; Decatur Charcoal Chem. Works v. Moses, 89 Ala. 538. Our decision is, that Henry must be held to have waived Chandler’s indorsement on the execution, for that alone gave him the right to have it transmitted to another county, to be collected there. We offer another reason for this ruling. The statute, while it requires the sheriff to indorse on the process “the true date of its delivery to him,” does not state when that indorsement shall be made. Under rulings on kindred questions, we hold that it was his duty to make the indorsement within a reasonable time. It is manifest, however, that if it was placed on the execution, giving the true date, at any time before its return to the clerk, no recovery could be had against the sheriff on this account. Taking control of the execution, as Henry did, for a purpose which would have been defeated if Chandler’s indorsement had been upon it, we hold the legal conclusion irresistible, that he not only waived, but must have sanctioned the omission of the indorsement. When the execution was returned from St. Clair county, and again placed in Chandler’s hands, having the St. Clair sheriff’s indorsement on it, it had lost all vitality in Etowah county, and neither required proceedings under it, nor authorized the sheriff’s indorsement of the date of its receipt. It should have been returned by the St. Clair sheriff to the clerk’s office from which it issued.' — 1 Brick. Dig. 898, § 128. The Circuit Court erred in giving the charge asked by plaintiff, and in refusing the two charges asked by defendants. Reversed and remanded.