Pickard v. Peters , 3 Ala. 493 ( 1842 )

ORMOND, J.

If there was any assignment of error bringing to our notice the judgment of the Court against the coroner and his surities, there can be no doubt that the judgment there rendered wpuld have to be reversed, as no notice appears to haye been given to the- coroner, which would authorise a judgment against his sureties. It is, to be sure, assigned for error . that notice was given to the parties below, but it is not necessary that notice should be given to the sureties, as has been repeatedly held in this Court; if the sheriff has been duly notified that a. motion will be made against him and his sureties, it will . sufficient, according to the express directions of the statute.

■ Here, the coroner was notified that a motion would be made against him, not under the statute for failing to pay over the money, which. he appears to have been perfectly willing to páy, ; provided he could do it with safety, hut addressed to the extraordinary power of the Court in'the supervision of the con-' duct of its own officer. In such a proceeding, the sheriff is’a mere stake holder, the true parties litigant, are the plaintiffs in the rival executions. It is therefore most obvious, that a notice of a motion of this character, will not authorize a judgment against the sheriff and his sureties, and hlthougbi a judgment by mistake, or .for some reason which does not appear, was finally rendered against the.coroner and his sureties, they iveré not the parties below.

We come now to consider the judgment of the Court on the facts, which was doubtless what was intended to be presented for l-evision in this Court. The first question is, whether the refusal of the plaintiff in the senior execution to give a bond of indemnity, on the demand of the coroner, discharged tlje levy, or precluded the plaintiff from afterwards insisting on the money arising from a sale of the slave.

The sheriff has the right, where a doubt arises, ■vyhether, after a levy, the right of the property is in the defendant in execution, to demand from the plaintiff in execution! a bond of indemnity, to protect him in the sale of the property. If this bond is not given, the sheriff is justified in delivering the property to him from whose possession it was taken. Aik. Digest 167, § 43. A subsequent act, declares, that in such a case, where there is a senior and junior execution, that if-the plaintiff in the former, refuse to execute the bond and the plaintiff in the latter consent to do so, the lien shall be divested in favor of the junior execution. Aik. Dig. 166 § sec. 39.

In this case, it appears that a bond was demanded by the coroner, of the defendant in error, and refused, but the coroner did not, as he then had the right to do, return the property tb the person from whose possession he had taken it; nor did he demand from the plaintiff in the junior execution, a bond to indemnify, but as we must presume, retained both executions and the property in his hands, until after the return day; as it is 1 stated, that neither levy had been discharged. As therefore, no action followed his demand of a bond of indemnity from tile defendant in error, it cannot, that we can'perceive, have’ ány •influence iñ this cause. If the coroner had, upon the refusal of the defendant in error to give the bond, returned the property, that would have discharged the levy, or if the plaintiff in the junior execution had, upon the refusal of the defendant in error indemnified the sheriff that would have transferred the lien to the younger execution; neither having been done, the lien • of the elder execution is perfect.

The question, whether property levied on can be-sold after the return day of the execution, without a veñditioni exponas, does not arise in this case, The question presented on the record, is not whether the property was legally sold, as it is shewn that the sale, was by the consent of the defendant in execution without a bond of indemnity.' It is not, to be sure, explicitly stated ,that the coroner .made the sale in .virtue of the levy, but that such was the fact, is quite .clear from the statement that no bond of indemnity was required, and it is certain that, the execution was not returned. If the sale had-been made by the consent of the defendant in execution, without reference to either levy, there would have been no propriety or necessity of adverting to the fact that a bond of indemnity was not required. . .

This being then merely the case of a sale under a levy there being a prior lien.by virtue of a previous levy, the judgment of the Court below, enforcing the lien of the senior execution was strictly .correct.,;

It is no objection that the facts were not passed on by a jury. The question submitted to the Court, was not one of fact, but of law; it was not .what acts were done by the coroner, but' the legal consequences attending these acts.

Let the judgment -be affirmed.