Henderson v. Henderson's Adm'r , 66 Ala. 556 ( 1880 )

SOMERVILLE, J.

The probate judge being incompetent, under the provisions of the Code, to try this case, it was transferred to th’e register in chancery, as required by section 713 of the Code of 1876. In such case, the register is authorized to discharge all duties appertaining to the trial, “as if he were judge of probate.” The power of the register to issue ah execution, on a judgment lawfully rendered by him, cannot be doubted. Section 711 of the Code expressly makes a sheriff liable for failing to make the money on, or failing to return such an execution. Independently of this, it is an obvious principle, that any court, competent to pronounce judgment, may also issue execution.—Herman on Executions, § 76; United States v. Drenner, Hemp. 320.

We think the motion made, in the court below, to quash the execution in this case, came too late. It is true that, as a general rule, courts have the power to quash executions at any time; but they properly refuse to exercise such power, in cases of laches. They require motions, in ordinary cases, to be made and prosecuted with diligence; and when the error complained of consists in a mere irregularity, any considerable delay on the part of the applicant will be treated as a waiver of the irregularity, and an irrevocable renunciation of his right to quash the writ.” — Freeman on Ex. § 76; Herman on Ex. § 404; Stephens v. Wilson, 14 B. Monr. 88; Bowman v. Talman, 2 Rob. (N. Y.) 633. As said by Eedeield, C. J., in Hapgood v. Goddard, 26 Vt. 401, which was a case where the execution was voidable, as having been prematurely issued, “The party should have applied in a reasonable time, which is the earliest convenient time.”

The execution in this case was returnable to the September term, 1877, and motion* to quash was made at the June term of the Probate Court, 1878, after the lapse of eight regular terms of that court. Conceding that the execution was voidable, the laches of the defendant debars him from complaining at the refusal to quash.

This is in accordance with the practice of the courts in this State, as indicated by Eule 13, prescribed for the Circuit and inferior courts of common-law jurisdiction, which, though not made specially applicable to Probate Courts, is usually made so, quoad hoc, by analogy. This rule provides, that “a motion to quash an attachment, appeal, or process, must be made at the first term at which it can be made, and not afterwards.” It is founded on that hate which the law should have for unnecessary delay, and is a proper application of the ancient maxim, vigilantibus, et non dormientibus, jura subveniuni.

There was no error in the refusal to quash. The judgment is affirmed.