Berry v. Perry , 81 Ala. 103 ( 1886 )

SOMEBYILLE, J.

— 1. Tlie execution against Clark, the administrator, was made returnable to the second Monday in April, 1886. It was actually returned “no property found ” by the sheriff on January 22d, 1886, or nearly two months earlier than the return day. On the same day (January 22d), an execution was issued against the administrator and his sureties, under the provisions of § 2619 of the Code (1876). It is held by some of the authorities that where a defendant in execution has no property subject to the process, and the officer is willing to assume the onus of establishing this fact, he need not hold the writ up until the return day, but may lawfully return it prior thereto, unsatisfied, and that such a return, when made in good faith, will support subsequent writs, and proceedings to the same extent as if it had been regularly made to the return day. Other authorities hold the contrary. — Freeman on Executions, § 353; and cases on p. 583; notes 1 and 2. However this may be, the case of Steele v. Tutwiler, 68 Ala. 107, is a direct authority on the proposition that the execution against the surety, which is here sought to be quashed, was not void, but at most voidable. We adhere to that ruling.

2. The only remaining question is, whether the motion to quash, made by the personal representative of Tyree, the surety, was made within a reasonable time, and was prosecuted with proper diligence. The defendant is shown to have been advised of the levy some time in March, 1886. The motion to quash was not made in the Probate Court until October. Making due allowance for the fact that in this case the administrator would probably be entitled to some additional time for ,such an investigation, by reason of the onerous duties connected with the management of his trust, still we think that under the rule stated in Henderson v. Henderson, 66 Ala. 556, the laches of the appellant was fatal to the relief sought, unless there was some excuse shown for the delay in making the motion to quash. The alleged defect in the issue of the execution was easily discovered by a casual inspection of the papers on their face.

3. The excuse for delay urged in the lower court was that the attorney for the appellee had given time to the appellant’s counsel to investigate the question as to the liability of the surety, and this agreement included an inquiry as to the regularity of the execution. The evidence was conflicting on the latter point. There is nothing in the written correspondence which satisfies us that there was any purpose to delay the sale except to allow an investigation as to the liability of the surety on the merits of the case. The finding of the Probate Court on the oral testimony was against the appellant’s contention, and we can not say that it was erroneous.

Affirmed.