Campbell v. Smith , 116 Ala. 290 ( 1896 )

HEAD, J.

Independent of any statutory provision to the contrary, an execution issued by a justice of the peace has no force outside of the county of the justice. Section 3349 of. the Code of 1886 (Code of 1896, § 1936) provides, that “When a defendant in judgment removes to another county, or has property in any county other than that in which the judgment was rendered, execution on such judgment may be issued by the justice, and directed to any constable of such county, which must be certified by the judge of probate of the county in which the judgment was rendered, or by a justice of the county to which it is sent, who has knowledge of the handwriting of the justice issuing it.” The next section provides that, “Such execution may be executed by any constable of the county to which it is sent, and must be by him returned to the justice issuing.it, as in other cases.”

In order to be a valid levy and sale in a county other than that in which the judgment was rendered, there must be a substantial compliance with these provisions.

This case turns upon the validity of an execution issued by a justice of the peace in DeKalb county, by whom the judgment was rendered, and by him sent to a constable in Cherokee county, who levied it upon the land in question, lying in Cherokee county.

- There are two objections made to this execution: First, that it is addressed : “The State of Alabama, DeKalb county, To any lawful officer of said county:” with nothing upon the execution to show that it was to be sent to, or executed in, Cherokee county ; and, second, that it was not certified as required by said section 3349 of the Code of 1886, (Code of 1896, § 1936).

Under the general statute regulating executions from justices’ courts,, which are to be executed in the county where the judgment is rendered, it is provided that the writ shall be addressed: “State of Alabama,-county. To any lawful officer of the county of-:” It lias been held by this court that this provision was directory, and a failure to conform to it did not render the execution void. — Sandlin v. Anderson, 82 Ala. 330.

We are considering now, however, a special provision for the execution of the writ in another county, and find that the statute requires, in express terms, that it shall be directed to any constable of such other county. We think this is a mandatory requirement. It was not intended that an execution issued by a justice should be sent to any county in the State, without some designation upon the writ of the particular county whose officers are to be authorized to execute it. The provision is that when the defendant removes to another county, or has property in any county other than that in which the judgment was rendered, execution may be issued by the justice and directed to any constable of such county. The justice is called upon to ascertain either that the defendant has removed to, or has property in another county, and what county, and then to direct the writ to any constable of the county, so ascertained, and cause it to be placed in the hands of a constable of such. county for execution.

Before being sent to Cherokee, the probate judge of DeKalb county certified upon the writ that Lake Moore, the person who issued it, was an acting justice of the peace for said DeKalb county. There was no other indorsement. We think this was sufficient. The clause of said section 3349, “Who. has knowledge of the handwriting of the justice issuing it,” has reference to the justice of the county to which the writ is sent, who is, by the section, authorized to certify the writ, and not to the judge of probate of the county in which the judgment was rendered. Though not expressly decided, this was evidently the opinion of the court as intimated in Street v. McClerkin, 77 Ala. 580.

We are of opinion that the execution was void by reason of the non-compliance with the statute above pointed out, 'and that the plaintiff acquired no title to the land by the sheriff’s sale and deed.

Affirmed.