Godbold v. Planters' & Merchants' Bank of Mobile , 4 Ala. 516 ( 1842 )

COLLIER, C. J.

1. It cannot be objected to the notice that it informed the defendants below, a judgment would be moved for against them, for the amount of the judgment recovered by the Bank against Tobin, &c. instead of the execution; for if, (as has been repeatedly adjudged,) the failure of a Sheriff to return a fieri facias, subjects himself and sureties to a recovery equal to its amount, their liability is quite as extensive as the notice sought to enforce. The substitution of the term “judgment,” for “ execution,” can exert no prejudicial influence, and the proceeding must be considered as having been commenced in reference to the act of 1819. Again: an issue was made up and tried by a jury, although the record does not inform us what that issue was, we are authorized to infer from the verdict and judgment, that it was a negation of the facts stated in the notice. This being the case, no objection to the notice that does not show it to be substantially defective, can now be entertained; the appearance and plea of the defendants operating to cure all such defects.

2. The judgment entry is drawn out to an unusual length and with unnecessary particularity, considering the judgment is rendered upon a verdict: yet this, it is conceived, cannot work an injury to any one. The view we have taken of the notice, shows that its mis-recital in the judgment, is a mere verbal error which cannot prejudice the rights of either party; and the statement that the judgment against Tobin, &c. was produced at the trial, is equally harmless; for the bill of exceptions, certifying the reverse to be true, would control the recital in the judgment entry, if any prejudicial consequences could result from it.

3. In respect to the amount for which the judgment is rendered, it may be remarked, that it conforms to the verdict. At the conclusion of the judgment, it is stated, that the items composing it are, “the judgment on which said writ of fieri facias was issued, with interest from the date thereof and its costs,” &c. It has been holden, that where a judgment on a verdict conforms to it, though the latter be for too large a sum, yet it will not be reversed on error, but a correction should have been sought in the primary Court. [1 Por. Rep. 280.]

4. The official bond of a Sheriff is required by law to be deposited in the office of the Clerk of the County Court of his County, .nd is such a public document as is not subject to removal (under ordinary circumstances) from place to place where it ma; be wanted as evidence; but a sworn, or certified copy, is admissible as a substitute for the original. [Miller v. Gee, at this term.]

But it is insisted, that the attestation of the copy offered to the jury, is insufficient. We cannot think that this argument is well founded. . The deputy clerk, if duly qualified, possessed the authority to certify the transcript in the name of his principal ; and his qualification, in the absence of all evidence to the contrary, must be presumed to have been regular.

The attestation, it is true, is unusual in stating that the official seal of the clerk was lost or mislaid. The official acts of a Clerk, which are to be used as evidence elsewhere than in his own Court, should in general be attested by his seal of office, if he have one. In the case before us, the form of the attestation would indicate that there was a seal pertaining to the office, which it is affirmed was lost or mislaid. This affirmation serves to show that at the time the transcript was made, there was no seal that could be used, and we think this authorized the use of the private seal of the Clerk, and that it sufficiently authenticated the paper. The opposite conclusion might seriously affect individual rights, and even the public interest, by preventing the attestation of documents important to both.

5. The production of the judgment on which the execution issued, we think, was not essential to the plaintiff’s right to recover. Other evidence of the amount of the execution was admissible. In McWhorter et al. v. Marrs, [Minor’s Rep. 376,] the Court say, “ The official entries and information of the Clerk, are by law, evidence of the issuing and delivery of the execution.” Again: “If the execution issued from competent authority, and was duly authenticated, it was not for the Sheriff in defence of the rule, to say that the execution was irregular, or to know whether it was founded on a proper judgment or not. Its mandate was imperative, and he was bound to obey it.” [Anderson v. Cunningham, Minor’s Rep. 48. See also Neale et al. v. Caldwell, 3 Stew’t. Rep. 134.]

The correct rule on this point, we think, is this: Where the execution issues upon a judgment which is so far valid, as to justify the Sheriff in executing it, he cannot be permitted to object that it is irregular and voidable; but where the judgment is so utterly void as to afford no warrant to the officer for obeying the mandate of an'execution, he may successfully defend himself against a motion for failing to return it, by proving, either, that there is no judgment, or it is void. The plaintiff, however, need not refer to the judgment, but may make out his case by other legal proof.

The bill of exceptions does hot negative the introduction of ample evidence to sustain the motion, and we understand the objection was hot to the want of other proof, but to the absence of the judgment. .In this view, we have seen the instruction was correctly denied.

The charge given is unexceptionable. It merely asserts the right of the plaintiff to recover if the execution was placed in the Sheriff’s hands, and not returned as required, by lato. The latter part of the charge shows, that it must have been delivered to the Sheriff when it was operative; otherwise, the law made no requisition upon the Sheriff for its return.

We have repeatedly expressed our regret that the earlier decisions of this Court had given to the Act of 1819, a construction so highly penal against Sheriffs, &c. for the failure to return executions. But this construction commenced too long ago, and has been too often recognized to allow us to depart from it. The doctrine of Stare decisis, forbids that we should make any footsteps backwards.

The judgment must be affirmed.

Goldthwaite, J. not sitting.