Harrison v. Hamner , 99 Ala. 603 ( 1892 )

STONE, C. J.-

The replevin bond given in this case is clearly not a statutory bond, upon which a summary execution! could issue, when the sheriff returned the bond forfeited. The execution was therefore irregular, and subject to be quashed on a proper motion. Code of lb86, § 2721; Lunsford v. Richardson, 5 Ala. 618; Moffett v. Br. Bank of Mobile, 7 Ala. 593; Br. Bank v. Darrington, 14 Ala. 192; Russell v. Locke, 57 Ala. 420. The bond, however, is a good common law obligation, and will support an action for its breach. Wood v. Coman, 56 Ala. 283; Masterson v. Matthews, 60 Ala. 260; Ernst v. Hogue, 86 Ala. 502.

Counsel for appellee do not gainsay the foregoing propositions, but they contend that they are for certain specified reasons inapplicable to the case presented in the record before us.

First: It is contended that, for the purposes of the motion to quash, the City Court of Gadsden cannot be regarded as being in session when this motion was ruled on. The precise point of this contention is, that under the statute creating that court, approved February 18,1891 — Sess. Acts, 1092-1103 — it is enacted, “That final judgments rendered in said court shall, after the expiration of ten days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of the court at which such judgments are rendered had ended at the end of said ten days ;” with certain provisos, not material to a proper decision of this case. § 27, p. 1102. The motion to quash was made more than ten days after the judgment was rendered in the detinue suit.

There is nothing in this objection. The execution which the motion sought to quash was not issued pursuant to any order of the court; and granting the motion would, in no sense, have been the taking or assertion of control over the judgment of the court. It was a statutory execution, issued by the clerk on the return of the bond forfeited, sometimes called an office judgment. A further reason. A motion to quash an execution, it would seem, could never involve interference with, or change of the judgment of the court. The inquiry on such motion must needs be, whether or not under the judgment rendered and the attendant facts, the process of execution and its enforcement are justified under the law. Such motion may be acted on at any time when the court, is in session, without any regard to the term of the court at which the judgment was rendered. The court in such action simply supervises the action of its ministerial officers so as to prevent misuse or abuse of its process. 3 Brick. Dig., 454, §§ 92, 93.

Second: It is objected that the exception in this case was not properly reserved. In the motion to quash, two grounds were stated, 'one of which it is contended is insufficient and frivolous. The court overruled the motion to quash, and movant excepted. The contention is,' that the exception should have been several as to each of the grounds on which the motion was rested.

We think this is a misapprehension of the principle which requires that the exception must not be broader than the error complained of. The motion was to quash the execution, and the exception was to the order of the court overruling that motion. That was the error complained of — not the ground on which the ruling was based. Like objections to the introduction of testimony, some of which objections are sufficient and others insufficient, if the court admit the testimony and there is a single exception to the ruling, this raises the question and makes it our duty to consider it. The error in such case consists in receiving illegal evidence, and not in overruling a sufficient objection to it because it is associated with another that is insufficient. TJtile per inutile non vitiatur.

The judgment of the City Court is reversed, and a judgment here rendered quashing the execution.

Reversed and rendered.