Frohlichstein v. Jordan

HARALSON, J.- 1. A judgment was rendered in favor of the plaintiff in the justice court against the defendant for $4.25 damages and $6.40 court costs. The right of appeal was secured to defendant under section 481 of the Code, which provides that, “any party may appeal from any judgment rendered against him before a justice of the peace to the circuit court, or court of like jurisdiction upon complying with the provisions of this chapter, at any time within five days after the rendition thereof,” etc. Section 482 provides, that no cause can be carried by appeal from a justice court to the circuit court or other court, unless the party appealing executes the bond required by that section; and section 483 provides, that “such bond shall be in double the amount of the judgment rendered against him, including costs.” The defendant, Avithin five days, tendered an appeal bond to the justice for $15.00, which was not double the amount of the judgment for damages and costs, and the justice refused to accept the same and certify the appeal, on the ground that the bond was insufficient in amount. The justice Avas under no duty, [314] ministerial or judicial, to approve the boud tendered and certify the appeal, for the reason, that the defendant bad ■ not brought himself within the provisions of said sections 482 and 483 of the Code, — and his refusal to do so was no breach of his official bond. He had no discretion. If the appeal was not claimed within five days, the justice had no authority to grant it, and if he should have done so, it would have been liable to- be dismissed on it so appearing in the court to which it was taken. — Johnson v. Hale, 3 S. & P. 331, 333. The demurrer to the first count of the complaint was, therefore, properly sustained. 2. Said judgment was rendered by the justice in favor of the plaintiff against the defendant, on the 19th of June, 1902, and on the 28th of that month, he issued an execution thereon. The 2d count claims a breach of the justices’ official bond sued on, on the ground, as stated in the count, that the justice, “on June 28th, 1902, wrongfully issued execution on a judgment rendered in his court on the 19th day of June, 1902, in the case of A. Switzer against plaintiff herein, after being notified by her attorney, of the granting of a writ of certiorari in said cause, on the 27th day of June, 1902, by the Hon. W. S. Anderson, judge of the circuit court of Mobile county, Alabama, and bond made therefor,' which said writ of certiorari was served upon said Richard C. Jordan (the justice) by the. sheriff of Mobile county on the 28th clay of June, 1902.” • It is not averred that the writ of certiorari was granted before the execution was issued. The prima facie presumption is, that the officer did his duty and issued the execution before the writ of certiorari Avas granted. The breach alleged, is predicated alone on the fact, that defendant’s attorney notified the justice, that a Avrit of certiorari had been granted by the judge of the circuit court on the 27th of June, although, as appears, the justice had no official notice of the fact at the. time he issued the Avrit. The execution Avas issued after a lapse of five days from the rendition of the judgment. Section 1932 of the Code provides: “After the lapse of five days from the rendition of judgment by a justice of the peace, if an appeal is not taken, the justice must,'unless'other [315] wise directed, issue a fieri facias for tlie satisfaction of the judgment,” etc. The justice, unless he was legally notified of the granting of the writ of certiorari, acted within the provisions of said section of the Code, and not in violation thereof, and so acting, the issuance of the execution by him constituted no breach of his official bond. The question, therefore, is presented, whether or not the notice given tlie justice by the attorney of plaintiff:, before he issued execution on said judgment, that a writ of certiorari had been granted by the circuit judge, was a legal notice of the granting of the certiorari, such as the justice was bound to respect, in the same manner as if he had received official notification of that fact. The issuance of an execution is a ministerial act. When applied for, the only enquiry competent to be made by the officer issuing it is, whether the record of the court shows a judgment authorizing it. The issuance of the execution is a matter of right, and if the party against whom it issues is aggrieved, an application for a supersedeas is the proper remedy, or if there are equitable circumstances, a bill in equity. — Hudson v. Modawell, 64 Ala. 481. The case of Payne v. Governor, 18 Ala. 320, was a case against a constable and the sureties on his bond, to recover for selling personal property levied on under execution in his hands, after the judgment had been superseded by certiorari. The defense was, that the constable had no sufficient notice of the certiorari. It appeared that the justice on whom the certiorari and supersedeas were served, issued no written notice to the constable requiring him to suspend proceedings under the execution and levy he had made thereon, but merely informed him verbally that the supersedeas had been served on him. The' court charged the jury, that if the constable was informed by the justice that the supersedeas had issued, he ought to have examined it, and if he proceeded to sell without doing so, he was liable on his bond for breach of official duty. This court held this to be error, saying: “We apprehend that it would not be denied, that the sheriff: (constable) must be served with a written order requiring him to suspend all action upon an [316] execution in Iiis hands before he could be made liable for executing it. * * * We do not perceive how he could be protected by a conversation with the clerk, or even with the judge, in which he was told that the writ was suspended, if in fact it was not. * * * * Such intercourse. as this, between the justice and his 'constable, cannot be considered as of an official character, and the constable is not bound to regard it. It is his duty to obey the mandate of the writ, and if this has been superseded, then he should be commanded not to execute it, and this command should be of such a character as to afford him protection.” — Clark v. Lamb, 76 Ala. 408. We do not 'decide that the Avrit in this case AAras required to be served by an officer. It may be, that such a paper might be served by any person in a manner and by means, such as that the justice is made aware,of the issuance of the writ of certiorari and its requirements. If the original had been in fact delivered to the justice, it may be such service would be sufficient. — State v. Duyc, 41 N. J. Law, 93. The verbal notice given by the attorney of plaintiff to the justice was not a sufficient notice, to prevent him from issuing the execution. From Avhat has been said, it Avill appear, that the issuance of said execution involved no breach on the justice’s bond, and the demurrer to the second count of the complaint was properly sustained. Affirmed.