Roundtree v. Weaver , 8 Ala. 314 ( 1845 )

COLLIER, C. J.

In Rutland’s adm’r v. Pippin and another, 7 Ala. Rep. 419, it appeared that the sheriffofGreene,onthe 19th May, 1842, paid to the agent of the plaintiff in execution, the amount due thereon, saving sixty dollars, the attorney’s commissions, (which they afterwards received.) This payment was an advance by the sheriff, in discharge of an official liability consequent upon his neglect. In respect to the question, whether the defendants could avail themselves of the payment of the amount of the execution, so as to destroy the vitality of the judgment, we said, “ this cannot be regarded as a disputable point in this State.” The cases of Boren, et al. v. McGehee, 6 Porter’s Rep. 445; Fournier v. Curry, 4 Ala. Rep. 323; Johnson v. Cunningham, 1 Ala. Rep. N. S. 257, are cited and considered conclusive against the right to sue an execution on the judgment.

The -facts of the case before us are quite as strong as those stated in any previous adjudication upon the subject, and bring it fully within the principle above stated.

We have not looked into the petitiun to ascertain if it harmonizes with the proof adduced. The petition should certainly have stated the facts truly, but its object was to supersede the execution, and that being attained, it was competent for the defendant to submit a motion to quash the execution, not only upon the grounds stated in the petition, but upon any other that would avail him. This conclusion is so obviously correct, and consonant to the practice in such cases, that it is difficult to illustrate it more clearly.

In Rutland’s adm’r v. Pippin and another, supra, it was supposed to be unnecessary to consider, whether, if the sheriff paid the money at the request of the defendant, he could not maintain an action against them for money paid, laid out &c., or whether the motion to quash, and thus obtaining the benefit of it, would not warrant the presumption of a previous request, or subsequent adoption of it. We may now add, that if the defendant approves the payment, by moving to quash, we cannot very well perceive how he can avoid a recovery, in an action at the suit of the sheriff for his reimbursement.

Without adding more, we have but to declare, that the judgment is reversed, and the cause remanded.