O'Connor Mining & Manufacturing Co. v. Dickson , 112 Ala. 304 ( 1895 )

HEAD, J.

The only question for the jury, in this cause, was whether the execution was delivered to the sheriff by the witness, Savage, as he testified it was. There was no direct evidence to the contrary, but we think the circumstances testified to by the sheriff and his deputy required the case to be sent to the jury, on that issue.

There was no legal evidence that the plaintiff’s attorney ordered the execution to be returned. A letter received by another through the mail, at least, one not in response to a letter previously sent to the purported writer, is not admissible against the purported writer, or his principal, without proof of its genuineness. The law presumes that a letter prepaid and posted, properly addressed to the sendee, at the usual place of receiving his mail, was delivered in due course. It rests upon the assumption that the post-officials and post-men discharge their duties ; but there is no presumption that a person whose name is signed to a letter is its author, merely because it was carried by the post. The court erred in admitting the testimony of the sheriff and his deputy in reference to the letter. •

But, the matter of.the letter was immaterial. It was a valuable right of the plaintiff to have the indorsement made upon the execution notwithstanding an order given by him for its return before the return day. It was the sheriff’s duty within a reasonable time after receiving the writ, to endorse upon it the day, month and year' of its receipt; and when more than one execution against the same defendant comes to his hands on the same day, if not received at the same time, he must indorse thereon the order in which they are received. This particularity of the statute is prompted by obvious reasons. The suing out of process is not accomplished until its delivery to the sheriff. The required indorsement constitutes a record of the fact, received in any proceeding with the verity which attaches to record evidence. The time of the issuance of an execution may be important in many respects. For instance, we may mention, it may be important to know that an execution was issued before the death of the defendant, to obtain the benefits of section 2897 of the Code. Again, if execution be not issued within a year and a day after judgment, it cannot issue without revival. — Code of 1886, § 2923. It is true that an interference by the plaintiff, which prevents the execution of the process by the sheriff, will destroy the lien, as in favor of the holders of intervening titles or equities ; but it is only such rights.that are affected. The defendant in execution is not in a position to set up such an interference. — Albertson v. Goldsby, 28 Ala. 711; Carlisle v. Godwin, 68 Ala. 137; Clark v. Spencer, 75 Ala. 49.

This case is unlike that of Chandler v. Henry, 90 Ala. 271. There the execution was delivered to the sheriff, who was sued. He failed to make the indorsement. The plaintiff procured him to send the writ to the sheriff of another county. We held that if the writ had become a matter of record in the hands of the sheriff who first received it, by the required official indorsement of the sheriff thereon, it could not have, lawfully, been withdrawn from his office and transferred to the office of another sheriff; and that the plaintiff, in procuring the transfer, must have justified it by the fact that the sheriff had not made the official evidence of its delivery to him, and, of necessity, waived the making of the indorsement. Here, the plaintiff (conceding the letter ordering its return to have been written by plaintiff’s attorney) did no more than to order the writ to be returned to the court whence it issued. The very order itself carried with it evidence of the plaintiff’s intention that the writ should be preserved, as a record, for all purposes for which, as such, it might be made available.

Again, if the order was ■ given, the undisputed evidece shows that the sheriff paid no attention to it. He did not return the writ until long after the return day, and then, after the clerk, who issued it, had written urging him to do so. We are aware of no principle which now permits him, under such circumstances, to set up such an order.

And, if there had been any merit in the defense properly interposed, it could not be allowed here for the reason that it was not specially pleaded. — Petty v. Dill, 53 Ala. 641.

If the sheriff received the execution from Savage without requiring evidence of his authority to deliver it, he cannot be heard to allege irregularity in that respect. As we said, in an analogous case, such a defense would approach a fraud. — Steele v. Thompson, 62 Ala. 323.

The second and third charges requested by the plaintiff ought to have been given. The first charge so requested, was more favorable to the defendants than they were entitled to. It will probably not be requested on another trial. Charges 1, 2, 3 and 5 requested by defendants were properly given. Counsel misapply the cases of Vanderventer v. Ford, 60 Ala. 610, and Street v. Sinclair, 71 Ala. 110, as to charge on preponderance of evidence. Charge 4 was both bad and abstract.

Under the late act (Acts, 1894-95, p. 126), separate exceptions to written charges given or refused are presumed.

Reversed and remanded.