Ryan v. Couch , 66 Ala. 244 ( 1880 )

SOMERYILLE, J.

The examination of witnesses in cases, civil or criminal, is, in a great measure, necessarily under the control of the presiding judge, and subject to a just, wise, and sound judicial discretion. If he deem it necessary, in order to elicit the truth, and promote justice, he may, propria motu, or on the application of either party to the suit or proceeding, order all the witnesses, except the one under examination, to leave the court. This practice is believed to be coeval with judicature, having long been administered in the British Parliament, and the courts of both England and Scotland. When requested by counsel, or parties, though not a matter of right, the order is rarely withheld. — 2 Best on Ev. § 636 ; 1 Greenl. Ev. § 432.

But it is obvious that this rule of exclusion ought never to be applied, so as to debar a party to a suit from being present during the progress of his cause. ' He has a right to be present, for the purpose of aiding and instructing his counsel in prosecuting or defending his suit. To order him from the court-room, while his case is in process of judicial investigation, would be violative of the spirit, if not the .very letter of the Declaration of Rights, which declares that “ no person shall be debarred from prosecuting or defending, before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.” — Const. Art. 1, § 11; 2 Best on Ev. § 636 ; 1 Greenl. Ev. (Redf. Ed.) § 432, notes 1 and 3.

It was within the sound discretion of the court below to place the witness, John Ryan, under the rule; and, although we should be of opinion that this discretion was not exercised in furtherance of justice, it is not a revisable error, subject to review by the appellate court. — 1 Greenl. Ev. §431. In view, however, of the practical importance of the question raised, and by the request of appellant’s counsel, we deem it proper to indicate the correct rule of practice in cases of this character. Where a judge is satisfied, from the statement of counsel in open court, or otherwise, that a witness in a cause has acquired such an intimate knowledge of the facts, by reason of having acted as the authorized agent of either of the parties, that his services are required by counsel in the management of the trial, he ought not, especially in the necessary absence of his principal, to be placed under the rule. All rules of court are to be subordinated, in their construction and application, as far as possible, to securing the strict administration of that “ right and justice,” which are prohibited by the constitution to be made the subject of “ sale, denial, or delay.” — Const. Art. 1, § 14. “Applicatio est vita regulce.” — Pel. Leg. Max. 18. To exclude such a one from the valuable privilege of consultation with the attorney of his principal, during the progress of a trial, is not required by the reason of this rule of evidence. The sounder and better practice is to permit him to remain in the court-room.

2. The Circuit Court erred, in ruling that it was the duty of the appellee, Couch, to deliver the execution, which was in his hands, to his successor in the office of sheriff, upon demand by the latter. The execution had been received by Couch in his official capacity as sheriff, and before the expiration of his term of office. Notwithstanding such expiration, it was his duty to proceed to execute the levy, which he himself had made, at least so far as concerned the personal property.

The lien acquired by the levy of the execution was plainly not affected by the replevying of the property, and the giving of the forthcoming bond by the defendants in execution. Campbell v. Spence, 4 Ala. 543 ; Freeman on Executions, § 207. The levy in question was made before the expiration of Couch’s term of office, and he acquired a special property in the personal property levied on under the writ. As said by the Supreme Court of Maryland, in a similar case, “ an execution being an entire thing, he who begins must end. it.” — Purl’s Lessee v. Duvall, 5 Har. & J. Rep. 69.

In Freeman on Executions, § 291, it is said : “ The officer who commences, must usually complete the execution of the writ. His term of office may1 expire after the levy, and before the sale. This does not terminate his authority, nor even confer upon his successor power to make the sale if the venditioni exponas should be directed to him.”

Such has, also, been the view taken by this court in its past adjudications.—Leavitt v. Smith, 7 Ala. 175; Bondurant v. Buford, 1 Ala. 259; Dennis v. Chapman, 19 Ala. 29. We think the sounder rule, however, is to confine this principle to levies on personal property. Such levies invest the officer making them with a special property in the goods, which are thereby brought into his temporary custody. Personal property is, besides, more perishable in its nature. On this ground, a distinction may be properly made, which would permit a venditioni exponas, issued after the expiration of the term of the officer making the levy, to be executed, in such a case, by his successor. — Freeman on Ex. §§ 62, 291; Holmes v. McIndoe, 20 Wisconsin, 657; Bank of Tennessee v. Beatty, 3 Sneed, 305.

We do not think this view of the case is affected by sections 206 and 3190 of the Code of 1876. Section 206 provides, that “ in all cases, in which it is not otherwise expressly provided, when any office is vacated, except by the death of the incumbent, all books, papers, property and money belonging or appertaining to such office, must, on demand, be delivered over to his qualified successor.” Section 3190 provides what shall be the duty of a sheriff receiving an execution : “He must execute the writ with diligence, and, if practicable, perform the mandate thereof, and make return of his acts to the clerk, three days before the first day of the return term of the writ.”

The decisions of this court, and the recognized principles of the common law, touching the duties of sheriffs, superadd vitality to this statute, and are in perfect harmony with its letter and spirit. It comes within the exceptioiis intended to be engrafted on section 206 by the law-making power.

We assume it as a safe rule, that even when a statute is equally susceptible of two constructions, one of which is in harmony with a clearly settled principle of the common law, .and the other is in abrogation of it, courts will adopt the former and not the latter.

The Circuit Court erred in giving the charge excepted to 'by appellant, as also in admitting the testimony of Ezekiel Couch, to which objection was taken.

Reversed and remanded.