Wilson v. Sawyer , 37 Ala. 631 ( 1861 )

R. W. WALKER, J.

The question presented by this record.is, whether a sheriff, who has sold propeity under a fi.fa. regular on its face, but issued upon a judgment which was void, because the judge was incompetent to try the case, (Code, $ 560; Wilson v. Wilson, 36 Ala. 655,) is entitled, as against the defendant in the execution, to retain his commissions out of the proceeds of the sale.

The Code provides, that whenever it appears that -the process is regular on its face, and is issued by the competent'authority, a sheriff or other ministerial officer, is justified in- the execution of the same, whatever may be tbe defect in the proceeding on which it ivas issued.” — Code, § 2284. This section was designed to give legislative sanction to the just and salutary rule, adopted by some courts independently of legislation, that ministerial officers are not responsible for executing any process regular on us-ía-ce, if the court from which it issues has general'jurisdiction to award such process, although it had not jurisdiction;in that particular case. — See Rogers v. Mulliner, 6 Wend. 597; Lewis v. Palmer, ib. 367; Savacool v. Broughton, 5 Wend. 170 ; Coon v. Congden; 12 Wend. 496; People v. Cooper, 13 Wend. 379, 384; Noble v. Holmes, 5 Hill, 194 ; People v. Warren, 5 Hill, 440; Watson v. Watson, 9 Conn. 1-40 ; Jones v. Hughes, 5 Serg. & R. 299 ; Forward v. Marsh, 18 Ala. 645, 648; Clarke v. May, 2 Gray, 410; 3 Phil. Ev. (C. & H. notes, ed. 1843,) pp. 990, 107-8-9, 1078.

But the rule which justifies an officer, who acts under process apparently regular, though really void, is one of protection merely.-. “ It is a shield, but not-a sword. The officer, when sued., may defend under such process; but’ lie cannot build up a title upon it, which will enable him to maintain actions against third persons.” — Horton v. Hendershott, 1 Hill, 118; Sturbridge v. Winslow, 21 Pick. 83, 87.

The execution in' this case, though regular upon its face, was in fact void, and, in the very nature of things, no right can arise out of it. The statute exempts the sheriff from responsibility ; but it-was not designed'to reward or compensate him for executing such process. It would be most unjust, indeed, to take the property of a ciiizen to pay for the execution . of process against him which was issued without'authority of law. The principle is-a sound one, that “ no right can be derived from an unlawful act, in favor of a sheriff who does the unlawful act;” (Collier v. Windham, 27 Ala. 294;) and hence we conclude, that where the judgment is void, the sheriff is not entitled to commissions for executing the fi. fa. issued upon it. — See Nowlin v. McCalley, 31 Ala. 682.

judgment reversed, and cause remanded.