Prestridge v. Officers of Court , 42 Ala. 405 ( 1868 )

A. J. WALKER, C. J.

Section 2389 of the Code of 1852, is in the following words : “ When a plaintiff brings a suit, which he suffers to abate by the death of the defendant or other cause ; or where the suit abates by the death of the plaintiff, and his representatives fail to revive the same, judgment for costs may be rendered against such representatives in the name of the officers of the court, and are paid as other claims against such estate.” The first clause of this section is incomplete, and cannot be supplemented by anything which follows. As it is, it fails to prescribe that judgment might be rendered in favor of the officers of the court against plaintiff, in the contingency of a failure to revive, after an abatement by the death of the defendant. It would substitute conjecture as to what the legislature would have said, if it had spoken on the subject, for construction of what it did say, for the court to supply what is necessary to authorize the judgment for costs in the name of the officers of the court against the plaintiff by an abatement by the defendant’s death.— Garrison v. Burden, MS., 5th Div. 4184, by Judge J., 15th Jan. 1867. There was no authority to render the judgment for costs in this case against the plaintiff in favor of the officers of court. The judgment was a nullity, and no execution could legally issue on it. — Patterson v. Officers of Court, 11 Ala. 740. The court erred in not quashing the execution and vacating the judgment.

The “officers of court” can have no capacity to sue or be sued, except as authorized by statute. They have no corporate capacity. There is therefore no party appellee in this case. The appeal must be dismissed because an appeal is the appropriate remedy, only when there are parties on both sides. The appellant’s redress is by mandamus. — Patterson v. Officers of Court, supra; Ex parte Swan, 23 Ala. 192; Moore & Cocke v. Bell, 13 Ala. 459 ; Wolford v. Alexander, 12 Ala. 280.

The Eevised Code, § 2794, (2389,) remedies the'defect of the Code of 1852. It may have been the province of the codifyer to supply the defect, but it is not that of a court, whose authority is restricted to the duty of construction. The proceedings in this case were had before the Eevised Code became the law of the State.

Appeal dismissed.