Johnson v. McLaughlin , 9 Ala. 551 ( 1846 )

COLLIER, C. J.

The first question to which our attention has been directed is this, was the execution in respect to which the sheriff is charged with a default, properly directed to him, and was he bound, or even authorized, to obey its mandate ? The sheriff is the usual executive officer for the service of process, issuing from courts of record, and where he is competent, it should be addressed generally “ to any sheriff of the State,” &c. [Clay’s Dig. 199, § 1; 336, § 132.] And “ when any process shall issue, which shall be required to be served or executed by the coroner, the same shall be directed ‘ toany coroner of the State of Alabama.’ ” [Id. § 133; Pope & Hickman v. Stout, 1 Stew. Rep. 375; Sewell v. Bates’ Adm’r, 2 Stew. Rep. 462; Adamson v. Parker, 3 Ala. Rep. 727.]

It is laid down generally, that when just exception can be taken to the sheriff, because of his interest in the suit, or relationship to either plaintiff or defendant, the process must be awarded to the coroner for execution, instead of the sheriff. [3 Step. Com. 37; 3 Dane’s Ab. 62; The State v. Monk. 3 Ala. Rep. 415; Giles v. Brown, 1 Const. Rep. S. C. 230.] If the sheriff be a party, the law requiring the writ to be addressed to the coroner is not merely directory, but if disregarded, it has been held, the court will set aside the process upon an affidavit that the sheriff is interested. [Weston v. Coulson, 1 Bla. Rep. 506.] In Brewer v. Gloucester, 14 Mass. Rep. 216, it was judged to be a good cause to abate a writ, that it was served by an officer, or other person not legally authorized to serve it. [See Adamson v. Parker, et al. 3 Ala. Rep. 727.] It is clearly inferrible from what has been said, that it is not indispensable to the sheriff’s disqualification, that he should be a party to the record, or that he should have a pecuniary interest. If he stands in such a relation in respect to one of the parties as would probably make him solicitous for his success, he is incompetent to execute process, iuthe manner of serving which, he is invested with any latitude of discretion. So solicitous has the law been to secure suitors impartial officers, that it has even been held, that process to which a corporation is a party'must be executed by the coroner, if the sheriff be one of its members; or reside within its limits. [8 Mass. Rep. 96; 14 Id. 216; 17 Pick. 166. But see 1 Greenl. Rep. 361; 4 Pick. 405.]

Perhaps it would have been too much to assume from the notice itself that the defendant in execution was himself the sheriff in whose hands the process was placed, merely because he bore the same name. ' The third plea, however, asserts such to be the fact, and thus the question was raised, whether an execution against a sheriff, as administrator, can with propriety be directed to any sheriff, &c., and placed in his hands to execute, is he bound to obey its mandate, and are the sureties in his official bond, if he fail to do so, liable for his default ? Although an execution is said to issue from a court, yet the issuing of it by the clerk is a ministerial act, and only derives judicial sanction from its conformity to the judgment. Its direction to any class of executive officers, does not proceed from any thing found in the judgment itself, but from the suggestion of the clerk, whose duty it is to give it the proper form. Hence it is clearly competent for the defendant in execution to object to it for non-conformity to the judgment, or by showing that it was directed to an officer who was incompetent to execute it. Several of the cita* tions we have made, show that for the latter cause, it could be quashed on motion. In the present case, it is true, no formal motion to quash the execution was submitted to the County Court, yet the third plea explicitly alledged the misdirection as a bar to the motion founded on the failure to return it. If it had been necessary to quash the execution, in order to give the sheriff and his sureties the advantage they were entitled to claim from its defectiveness, this plea, in a proceeding not conducted according to strict legal forms, might perhaps have been treated as a motion to quash. Upon a motion to strike out, or on a demurrer, the truth of it should be considered as admitted, and if, upon an issue, a jury should affirm the truth of the plea, judgment should be rendered in favor of the defendants.

It may be competent to strike out on motion a plea confessedly bad, but it is not allowable thus to dispose of a plea which presents a good bar. In such case it would be error to sustain a demurrer, and surely a plea cannot be held insufficient upon a motion that would be good on demurrer.

The fact that the sheriff was not a party -in his own right, but as the administrator of the original debtor, does not the less disqualify him for the execution of the process. He was a party, and certainly interested in the administration of his intestate’s estate.

What has been said, is quite enough to show, that the misdirection' of the execution did not impose upon the sheriff the obligation to execute it. If it had been quashed, its vitality would have been, destroyed, and no motion could have been sustained for the failure to return it.

The receipt of the process by the sheriff, did not cure its defects, and oblige him to obey its mandate, or upon default, subject him to the summary remedy provided by the statute. The obligors in the official bond stipulate for a discharge of duty in respect to all process that can be legally directed; but not that he will be faithful in the performance of duty which the law does not commit to him.

The result of these views is, that the judgment of the Circuit Court is affirmed.