Albritton v. Williams , 132 Ala. 647 ( 1902 )

HARALSON, J.

— 1. Tbe plaintiff moved tbe court to quasb the affidavit of tbe claimant because it was not signed by bim or bis agent, or by any one. Tbe court overruled tlie motion, and at tlie instance of claimant, be was allowed to amend bis affidavit by signing tin--* same. Tbe affidavit needed no amendment: it. was good without claimant’s signature, since it bad tbe. jurat of tlie justice of tbe peace, before whom it was made, that it was sworn to before bim on tlie date it bears date. This clearly appears from tlie affidavit itself, introduced in evidence. The statute (Code, § 4141), docs not in terms require tbe affidavit to be signed by tbe party making it; and when it clearly appears as here, that tbe claimant made tbe affidavit, and the fact of bis swearing to- it is also properly certified by tbe officer before whom it was made, it is sufficient, although not subscribed by tbe party making it.—Watts v. Womack, 44 Ala. 605; Hyde v. Adams, 80 Ala. 113; 1 Cyclo. Law and Pro., 26.

2. To tbe execution that issued from tbe justice of tbe peace court, on tbe judgment therein rendered in favor of plaintiff, against tbe defendant in execution, no itemized bill of costs was attached ait, its foot or on any part of it, as is required in cases where executions issue from tlie circuit court under section 1883 of tbe Code, and on this ground, tlie claimant, in tbe circuit court, moved the court to quasb tbe execution. That section does require clerks (of tbe circuit court) to state in intelligible words and figures the several items conpposing the bill of costs, and provides that without such copy of the bill of costs the execution is illegal and shall not be levied. In Maxwell v. Pounds, 116 Ala. 551, the court, in construing that section, held that an execution which issued from a circuit court without a copy of the bill of costs, as by the section required, was void. It is well settled that mere irregularities or defects in the original proceedings are not available to claimant, but when void on their face from any cause, tire claimant may avail himself of it. Carter v. O’Bryan, 106 Ala. 314; Schamagel v. Whitehurst, 103 Ala. 263.

3. The contention of the plaintiff is that the requirements of said section 1883, have no application to executions issued from a justice of tire peace court, and apply only to such as issue from circuit courts; and the ci aimanfis contention is that it applies alike to such process issuing from either of these courts. This contention of the claimant is sought to be based, among other grounds, on section 2673 of the Code, which provides, that “As to' parties, trial, competency of witnesses, admissibility of evidence, regulation of suits, and the. time within which suits may be brought, unless otherwise provided, suits before justices of the peace shall be governed by the same rules and provisions, so far as they are applicable, as suits in the circuit court.” But, manifestly, this section does not apply to the issuance, return and levy of executions from justices’ courts. The rules of Hie circuit court, as to- parties, trial, competency of witnesses, admissibility of evidence, regulation of suits, and the time in which they may be brought therein, have no' application to the issuance of executions from justice’s courts. Issuance of execution from these courts does not fall within either of the specified categories.— Chaney v. Burford Lumber Co., 132 Ala. 315; Mitchell v. Corbin, 91 Ala. 599-601.

'Without .said section 1883, it could not be well contended that executions issuing from circuit courts without an itemized bill of costs at their foot or in some parts of themi, would he void. Their illegality when thus issued arises alone from the positive terms of the statute. This illegality, except inferentially, cannot be applied to executions from justices’ courts. A full answer to the contention is found in the fact that the statute has made the. requirement as to' one class of executions and not to the other; and having reference to the writs themselves, their issuance, periods of return, levy, sales thereundea, etc., it is not difficult to understand why the rule should, in the legislative mind, he proper to he made in the one case and not in the other.—Griffin v. Dauphin, in MS.

The court, erred in quashing the execution aud dismissing the suit.

Eeversed and remanded.