Ayers v. Roper , 111 Ala. 651 ( 1895 )

HEAD, J.

The plaintiffs, who bring statutory ejectment against the tenants of Benjamin Browlee, claim title as the vendee of a purchaser at a sheriff’s sale, under an alleged judgment and execution against their landlord. The city court, upon a trial without a jury, rendered judgment against the defendants, and from that judgment the appeal is taken.

The sheriff’s deed recites an' execution, a levy, and a sale thereunder in February, 1891, but these recitals did not make out a case for the plaintiffs. It was necessary to make independent proof of a judgment, execution and levy — 3 Brick. Dig. 453, § 70. The plaintiffs' offered in evidence entries from the execution docket of the circuit court, to which defendants objected on the ground that the execution itself was better evidence. This objection ought to have been sustained. When an execution is returned by the sheriff into the court whence it issued, it becomes a record, and proof thereof is to be regularly made by producing the original or a duly certilled copy.— Woodard v. Harbin, 1 Ala. 104; Smelser v. Drane, 19 Ala. 245; Hanna v. Price, 23 Ala. 826; McDade v. Plead, 18 Ala. 214. Secondary evidence of the contents of a record will not be received, until its former existence and loss or destruction be satisfactorily established. — Baucum v. George, 65 Ala. 259; Stewart v Cannon, 9 Ala. 803; Lyon v. Balling, 14 Ala. 214.

2. The bill of exceptions purports to contain all the evidence ; yet there is an entire omission to show an execution in the hands of the sheriff, such as the deed recites, or, indeed any execution to support the sale. The execution docket, which was received in evidence, contained the statement that an earlier writ was issued, and the original of that execution was produced by the defendants ; but it was not claimed that the sale was made under its authority. It is doubtless tsStie, as counsel for apellee state in their brief, that the execution docket also showed that a later execution, under which it is said the sale was made, had issued, and that the omission from the bill of exceptions of that entry was due to inadvertence or mistake. If that entry appeared in the bill of exceptions,it would not alter the case, since it would have to be here excluded or disregarded as merely secondary evidence, under the rule of law already noted. But we cannot assume that any evidence, primary or secondary, was offered or received to establish the existence of the execution, in the face of the statement that all of the evidence is preserved by the bill of exceptions. Absolute verity must be here imputed to the record, and by its contents alone must we be controlled.

3. There is no merit in the contention that no valid judgment against Brownlee, which would support an execution, was established. The original minute book of the circuit court of Jefferson county, wherein the judgment was rendered, fully identified by the deputy clerk, was produced, and the judgment entry,in regular form, disclosed that on a trial before the court, on a day named, the parties appearing by counsel, a recovery of a sum stated was had by the plaintiff in that suit, one Kilpatrick, against the said Brownlee. The entry shows the trial was had on a day which we know judicially was on'e of the days of a regular term of the circuit court. The absence of a convening order or statement of where or by what judge the court was held, did not invalidate the minute book, so fully identified as a memorial of the court’s action. In the absence of evidence that the court was held at an improper place, or presided, over by an unauthorized person, it will be presumed there was regularity in these particulars, if inquiry can be made in this collateral proceeding. — Clements v. Pearce, 68 Ala. 284; Baldridge v. Penland, 68 Texas 441; Black on Judments, § 271.

4. The defendants introduced the first execution issued 1890, together with a claim of exemption filed with the probate judge and lodged with the sheriff,- and,ah affidavit of contest of claim, all duly returned to the circuit court. They did not prove whether the contest had or had not been adjudicated, and their contention here is that, until the plaintiffs proved a determination of the contest, and an adjudication thereof adverse to the claimant, Brownlee, a sale by the sheriff under a later writ would be void. If resort to presumption were necessary to decide this question, it would rather be presumed that the exemption had been disposed of, and the claim adjudged invalid, than that the sheriff bad levied on and sold the property, in the face of a claim of exemption filed with the probate judge, which had not been successfully contested ; particularly when it appears, as it does, that a term of the court had intervened at which the contest could have been tried. If, however, we assume that the claim of homestead exemption had not been successfully contested, it would not follow that a levy and sale, under a regular execution, would be void. The proceeding would be simply irregular, justifying a setting aside of the sale, on proper application to the court, under whose process it was made. The levy and sale would pass the title to the land to the purchaser, upon which he could maintain ejectment. — Clark v. Spencer, 75 Ala. 49.

For the absence of proof of an execution to support the sale, the judgment of the city court for the plaintiffs, an exception having been reserved to such judgment, must be reversed. We will not render a final judgment here on this record, but in the exercise of the discretion with which we are clothed by the act regulating appeals from the city court of Birmingham in non-jury cases, we will remand the cause for another trial.

Reversed and remanded.