Olmstead v. Thompson

COLEMAN, J. The rule is settled in this State, and is settled by the decided preponderance of authority, that the premature issuing of an execution is voidable, and not absolutely void — -being merely an irregularity — and the process must be respected, and may be enforced, until vacated in a manner prescribed by law. It can not be collaterally assailed, even by the defendant- himself.—Steele v. Tutwiler, 68 Ala. 107; 1 Freeman on Executions, (2d Ed.) § 25. The judgment in controversy in this case was rendered by a justice of the peace, on November 12th, 1887. The writ of restitution was issued two days afterwards. If it be conceded that there is any force in the suggestion, that it was irregular to issue such process before the expiration of the ten days allowed by statute for the taking of an. appeal in cases of unlawful detainer, and after notice of such appeal had been given; yet, no supersedeas bond being given, the process would be voidable only, and not void.—Code, 1886, §§ 3398 et seq.; Olmstead v. Brewer, ante, p. 124. An execution, or other like process, which is voidable only, and not void, affords full and ample protection, not only to the officer who obeys its mandate, but, until avoided, it also protects the party at whose instance it issued, and was executed. Cogburn v. Spence, 15 Ala. 519; Averett v. Thompson, Ib. 678; 1 Freeman on Executions, §101; 1 Waterman on Trespass, § 467. This principle is as fully applicable to the process issuing-on a judgment rendered by a court of limited jurisdiction as to one of general jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears on the lace of the process to show that the person was not within it.—Savacol v. Boughton, 21 Amer. Dec. 181; Parker v. Walrod, 30 Amer.Dec. 124; Sheldon v. Vanbuskirk, 2 N. Y. 477; Mathis & Co. v. Nixon, present term. But, independently of the foregoing consideration, the mere taking- of an appeal, in cases of forcible entry, or of unlawful detainer, does not, by the express provision of the statute, prevent the issue of a writ of - restitution, unless the defendant also executes a supersedeas bond with sufficient sureties. Code, 1886, §3101. The replication to the defendant’s plea nowhere avers that a supersedeas bond was given, when the alleged appeal was taken in the unlawful detainer suit before the magistrate’s court-. The point is raised, however, by the appellant, that the plea of justification set up by the defendants in this case, which is an action of trespass, should have more fully described the judgment on which the writ of restitution was issued. While [133] this writ is set out in Timo verba, the judgment is described as ila valid judgment rendered by said justice [one S. B. Brewer] in an action of unlawful detainer, in favor of said defendant, against said plaintiff.” "While it is sufficient for the sheriff, or other officer executing the process, to plead and prove the execution without the judgment, in a plea of justification for an alleged trespass, the rule is different where the plaintiff in a former suit, as here, or a stranger to the process, is sued. He must not only prove the execution, but also the judgment; and where he is compelled to prove it in a plea of j ustification, he is required to plead it. 1 Waterman on Trespass, § 467; Dennis v. Snell, 54 Barb. 411; Shaw v. Davis, 55 Ib. 389; 2 Greenl. Ev. §629. The subject-matter of unlawful detainer being one of which justices’ courts have jurisdiction conferred by statute, the court will take judicial knowledge of this statute. But, unlawful detainer being cognizable only before a justice of the peace of the county in which the offense is committed, the fact should be averred that the court rendering the judgment had jurisdiction — Code, 1886, § 3378. In describing the judgment, the plea should give the parties, the date, the justice by Avhom it was rendered, the amount when for money, and aver the fact of its rendition; or else, the judgment itself may be set out in Time verba.—Masterson v. Matthews, 60 Ala. 260. The foregoing opinion was prepared by Judge Somerville, before his resignation, and adopted by the court. Reversed and remanded.