Brown, Toler & Phillips v. Hurt & Bro. , 31 Ala. 146 ( 1857 )

BICE, C. J.

— When an execution is n'ot void, but is voidable only, and has not been quashed or set aside, the claimant, on the trial of the right of property, cannot inquire into its regularity. However erroneous such execution may be, lie cannot collaterally assail it, on such trial. When the execution is a nullity, or when it has been set aside or quashed for irregularity, he may avail himself of that to defeat the plaintiff on the trial of the right of property. — Blount v. Traylor, 4 Ala. 667; Harrell v. Floyd, 3 Ala. 16 ; Huff v. Cox, 2 Ala. 310; Fryer v. Dennis, ib. 144; Bettis v. Taylor, 8 Porter, 564.

2. The case of Chambers v. Stone, 9 Ala. 260, is regarded by us as a conclusive authority for the position,that an execution is not void, merely because there is less than fifteen days between its teste and return day; but voidable only, and may be quashed or set aside. See, also, Allen v. The Portland Stage Co., 8 Greenl. 207; 2 U. S. Dig. 315, § 6; Wilson v. Hustou, 4 Bibb, 332; Johnson v. Harvey, 4 Mass. 483.

It is a sound rule, that such execution, being voidable only, and not void, is, until set aside or avoided, as effectual to protect the plaintiff, the officer, and a purchaser, and to create or continue a lien, as if it were free from error or objection. — Cogburn v. Spence, 15 Ala. 549 ; Blount v. Traylor, supra; Fournier v. Curry, 4 Ala. 321; Jackson v. Bartlett, 8 Johns. 361; Read v. Markle, 3 John. 523 ; Woodcock v. Bennett, 1 Cowen, 737. In other words, voidable process stands good, until set aside.

There is nothing opposed to the foregoing views in Brown v. Higginbottom, 19 Ala. 207. That ease turned upon a statute, which made the regularity of the proceedings before a justice a requisite to an order by the circuit court for the sale of land levied on by a constable under the justice’s execution.

The point actually decided in Harris v. West, 25 Miss. 156, was, that an execution, issued within less than fifteen daps before its return day, might be quashed on motion. That case agrees in that respect, fully, with. Chambers v. Stone, supra. It is true the court, in that case, say the execution was void. But still the court treated it as voidable only, by quashing it on motion; and we all know, that courts in their language often fail to keep up the distinction between void and voidable process, when, as in the case of Harris v. West, the distinction was not material upon the facts before the court.

According to the views above expressed, the charg’e of the court below was correct. Judgment affirmed.