Jefferson County Savings Bank v. McDermott

WALKER, J. When this case was here on a former appeal, it was decided that the bill of sale to the Jefferson County Savings Bank was fraudulent and void as against the complainants, and that if the process in this suit was •served on the defendants prior to the levy of the attachment sued out by the bank against Eborn, then the lien of the complainants would be superior to that of the bank. No disposition having been made by the trial court of the motion which had been made for the amendment of the sheriff’s return of the process in this ease, so as to show a priority in the levy of the attachment, the cause was remanded, in order that some action might be taken on that motion.—McDermott v. Eborn, 90 Ala. 258. After the remandment of the cause, the defendant bank amended its motion to set aside and correct the sheriff’s return on the process in this case, and alleged in the amended motion that the sheriff, whose return was sought to be corrected, was then dead. The same relief as to the correction of the return indorsed on the process was also sought by a cross bill interposed by the bank. The complainants’ demurrers to the amended motion and to the cross-bill were sustained. That action of the trial court is how assigned as error. The practice in the courts of this State of granting leave to a sheriff to amend his return of process, so that it may conform to the facts, is well established and is approved.—Wilson v. Strobach, 59 Ala. 488; Daniels v. Hamilton, 52 Ala. 105; 8 Brick. Dig., 745; 2 Ib., 456. A different question is presented when it is sought to compel the sheriff to change his return as to a matter of fact, or to have the court to substitute its finding as to the facts of the service of process in the place of the officer’s return. When the officer does not consent to the proposed correction, and the application is contested, a separate issue is presented for trial. It seems that the courts have regarded it as a matter of necessity to give credence to the official return of the service of process, in order to avoid the embarrassments of turning aside to try such collateral issues; and that a party who has been injured by a false return can not dispute it in that case, but must seek redress by proceedings against the officer.—Brown v. Turner, 11 Ala. 752; Crafts v. Dexter, 8 Ala. 767; Martin v. Barney, 20 Ala. 369; Boas v. Updegrove, 5 Pa. St. 516, s. c.; 4 Am. Dec. 425; Vastine v. Fury, 2 Serg. & Baw. 426; Bolles v. Bowen, 45 N. H. 124; 2 Freeman on Executions, §§ 358-369; Murphree on Sheriffs, § 868. It is not necessary to determine whether or not such absolutely conclusive effect must always be accorded to a sheriff’s return in the [82] case in which, it is made; for, without deciding that question, the action of the City Court in refusing to disturb the return in this case may be sustained. By whatever procedure a return is impeached, if the attack against it is sustained, the result is to render the officer who made it liable in damages to the party who may have suffered injury in consequence of its falsity. In the present case, for instance, if it is a fact that the process was not served on the defendants until after the service of the writ of attachment sued out by the bank, the sheriff would be liable to the bank for any injury resulting to it from the falsity of the return; and, if the correction is made in this case, he might also be liable to the complainants for the failure to serve their process with proper diligence. The issue presented was one in which the sheriff was materially interested. He was a necessary party to any proceeding for the determination of the question. He was dead when the amended motion and the cross-bill were filed and submitted. His representative was not brought into the case. The controversy sought to be presented could not have been settled because of the absence of an indispensable party. The grounds of demurrer addressed to this defect in the amended motion and in the cross-bill should have been sustained.—Brooks v. Harrison, 2 Ala. 209; 3 Brick. Dig., p. 368. If the sheriff, or his personal representative, could not have been made a party to the proceedings for the purpose of trying the question of the truth or falsity of the return, then that consideration alone would support the conclusion, that the issue is one not' determinable in this cause; for that can not be a proper method of procedure from which must be omitted a necessary party to the question to be settled. It is unnecessary to determine whether or not the personal representative of the sheriff could have been made a party to the proceeding so ast to be bound by the result thereof. The fact in this case that a necessary party was not before the court suffices to support the ruling on the demurrers pointing out that defect. The contention of the complainants was that they were entitled to have the debts due to them from Eborn paid out of property which, it was alleged, was claimed by the bank. The bank at first claimed that property under the bill of sale, and, afterwards, claimed a prior lien by virtue of its writ of attachment. The former claim has been disallowed as fraudulent. The latter claim is subordinate to the lien in favor of the complainants, for, according to the sheriff’s return which has not been amended or set aside, the at [83] tacbment was not sued out until after tbe process in tbis case was served on tbe defendants. But it appears from tbe answer of tbe bank to tbe bill as amended tbat tbe property-in question bas been sold under its writ of attachment, and tbat it bas received, as proceeds of tbe sale, an amount greater than tbe aggregate of tbe complainants’ claims. There being in tbis case, no claimant to tbat property, or tbe proceeds of its sale, besides tbe complainants and tbe bank, and it having been clearly ascertained tbat tbe complainants were entitled to priority, and tbat tbe bank was chargeable with more than enough to satisfy their debts, there was no necessity of a reference to tbe register to state an account of tbe amount with which tbe bank was chargeable, or to calculate tbe interest on tbe complainants’ demands. Tbe bank admitted tbat its receipts from tbe sale amounted to more than tbe complainants’ demands. No further inquiry on tbis subject was necessary. Tbe simple computation of interest was properly made by tbe judge himself without a reference.—3 Brick. Dig., p. 396, § 476, et seq. The other questions sought to be raised by tbe assignment of errors are concluded by tbe decision on tbe former appeal. We have discovered no reason to disturb tbat determination. Affirmed.