Thompson v. Acree , 69 Ala. 178 ( 1881 )

SOMERYILLE, J.

This is a motion for a summary judgment against the sheriff of Covington county, and the sureties ■on his official bond, for the negligent failure to execute a writ of attachment.

The attachment issued from a justice’s court, and was levied by the sheriff upon certain personal property of the defendant in attachment, one Holley. This was done under the provisions of section 733 of the present Code, which authorizes sheriffs to execute all mesne and final process which can be executed by constables.

The -main question presented is, whether the justice’s court had jurisdiction of the motion.

The statute evidently provides for obtaining summary judgments, not exceeding one hundred dollars, before justices of the .peace, against constables and against justices for certain specified failures of official duty. — Code of 1876, §§ 3663-3675. So the provisions are ample for obtaining such judgments, for any sums over fifty dollars, in the circuit cov/rts against sheriffs. Code, §§ 3356-3366.

A careful inspection of the general rules, in reference to motions of this character against sheriffs, as comprised in the Code (§§ 3351-3355) will show, we think, a legislative intention to confine such remedies, so far as sheriffs are concerned, exclusively to the circuit courts. Section 3355 prescribes that such a “ motion must be made in the circuit court of the county in which such officer [the sheriff] was acting officially at the time of the default, or in the court to which the process was returnable, when the default consists in the failure to execute, or return process, or to pay over money collected thereon. In all other cases not specially provided for, the motion must be made in the circuit court of the county in which the person moved against resides; if he has no permanent residence, then in any county where he may be found.” Construed alone this section might not be entirely clear or free from doubt, but taken in connection with the preceding sections, and especially section 3351, it can have reference to none other than circuit courts.

There is no court which has jurisdiction of summary motions against a sheriff for negligencies or misfeasances, relating to his levy of process from justices’ courts. Sheriffs had no authority to execute such process until the act approved February 26th, 1875 (Session Acts 1874-75, p. 181). Before this date it is clear that circuit courts had no jurisdiction of motions of this nature, and none is conferred by the act in question.

The court below erred in not sustaining the demurrer, and its judgment is reversed, and the cause is hereby'dismissed in this court at the cost of the appellee: