Sawyer v. Price , 6 Ala. 285 ( 1844 )

COLLIER, C. J.

It is the duty of the coroner to execute all process when the sheriff is a party in interest to any suit in the circuit or county count, and perform all the duties of sheriff, whenever, from any cause, he is incompetent to act as such. [Clay’s Dig. 159, § 3.] So, when the office of sheriff becomes vacant, the coroner is required to discharge all the duties which pertain to that office, under all the penalties and liabilities created by law for a violation or neglect of duty. [Clay’s Dig. 536, § 10.] Now, although the coroner is invested with the functions of a sheriff in certain cases, it is insisted, that, as the duties of that officer are devolved upon him only occasionally, it is necessary that process addressed to him should state upon its face the cause which makes him legally competent to execute it. It would certainly be more regular where the sheriff is incompetent in the particular case, to state the fact in the writ; yet the omission to do this, will not so far invalidate process, as to induce a revising court to vacate a judgment which has been rendered upon the default of the defendant. In Nabors v. Thomason, [1 Ala. Rep. N. S. 590,] the writ described the defendant as sheriff, &c., but was directed to any sheriff of the State of Alabama, and executed by the coroner. The defendant, in the primary court, moved to quash the writ; his motion was overruled, and he sued a writ of error to this court. It was decided, that the refusal to quash the writ, was not revisable on error; that the defendant should, as the statute directs, have pleaded the irregularity in abatement. [Clay’s l)ig. 335, § 123.] In Adamson v. Parker, et al. [3 Ala. Rep. 727,] it was said, that process, intended to be executed by the coronel’, should, as the act of 1839 prescribes, be directed to-the coroner eo nomine; yet it might be intended, where process directed to the sheriff was executed by the coroner, that the duties of the former had devolved upon the latter by the sheriffalty becoming vacant. That, in such a contingency, the process would be well executed. [See, also, Jordan v. Bell, 8 Porter’s. Rep. 53; Ware v. Todd, Adm'r, 1 Ala. Rep. N. S. 199.]

The cases cited all maintain that the form of 'process, and the irregularity of its execution, can only be taken advantage of by plea in abatement, and apply directly to the case before us.

Without adding any thing further, the judgment of the county court must be affirmed.