Neale v. Caldwell , 3 Stew. 134 ( 1830 )

By JUDGE TAYLOR.

Although many errors ore assigned in.this cause, I consider the case as involving the decision of but four questions, viz:

1st. Upon the service of notice upon a Sheriff and part of his securities of the intention of the plaintiff to move for judgment against them because the Sheriff' has failed to make due return of an execution, can judgment be rendered against all the securities?

2nd. Were the facts in this case sufficient to authorize a judgment in favor of the plaintiff?

3rd. Can a Circuit Court, during the term, reconsider one of its decisions, and correct an error of judgment which it has committed.

4th. Was the entry on the execution docket evidence that the execution had been delivered to the Sheriff?

It has heretofore been determined by this Court in the case McWhorter et al. v. Marrs,^a that notice to the Sheriff is sufficient to authorize a judgment against him and his securities, in a case of this kind. The 18th section of the act passed in December, 1819, entitled «an act to provide for the appointment of county officers, and for other purposes,” provides, “that when any Sheriff' shall fail to perform the duties required by this act, the person or persons aggrieved, may move against such delinquent Sheriff, and have judgment against such Sheriff ,_and his securities in office, for failing to return the execution in the manner above directed, in the Court from which such execution had issued, upon giving three days notice of such motion to such delinquent Sheriff or his securities in office.” This statute admits of but one construction, and it is, that proof of notice either to the Sheriff or his securities, is sufficient to entitle the plaintiff to a judgment against all the obligors in the Sheriff’s bond.

There can be little difficulty on the second point. Ths Sheriff is required “to return all writs and executions to the Clerks office from which they shall issue, at least three clays previously to the term of the Court to which they shall be returnable; and that if any Sheriff shall fail to return any writ or execution, according to the of this act, he shall he liable to all the penalties provided by the laws now in force, for failing to return the writ or execution to the first day of the term,” &c. The simple fact to be determined by the Court was, had the Sheriff returned the execution three days before the term, or rendered a sufficient excuse for not doing so. It is not pretended that he made such return, but it is contended he was justified in holding the execution until he made sale of the land levied on by virtue of it, which sale was advertised for the first day of the term of the Court to which the execution was returnable. There certainly was no necessity for the Sheriff to retain the execution until the sale day; the right to sell was vested in him by the levy. The force of the execution was spent on the return day, but all the legal title of the defendants was vested in the Sheriff by virtue of the levy, and he had the same right to sell without as with the execution being in his possession.

With regard to the third point, there can be no doubt of the power of the Court to amend or correct its judgments during the continuance of the term in which they have been pronounced.

Whenever a point of law or a fact is presented for the decision of the Court, and the opinion then pronounced is at any subsequent period of the term deemed to have been incorrect, the Court may direct the former judgment to be set aside, and one to be entered conforming to what is believed to be right.

It appears by the bill of exceptions, that to prove the execution had come to the Sheriff’s hands, and the amount of money for which it issued, a memorandum on the execution docket, kept by the Clerk, was introduced as evidence, which stated the day of its issuance and delivery to the Sheriff. It was contended by the defendants that the execution itself should be produced, or regular notice to the defendants to produce it on the trial, before any evidence of its contents could be given. Even were it to be admitted that the memorandum on the docket was of itself insufficient to prove the facts necessary to. be established with, regard to the receipt of the execution by the Sheriff, and its amount, without some evidence from Clerk that it was issued in conformity with such memorandum, which would surely be all that the law requires, yet there may have been such testimony, and as it not stated that no other evidence was introduced on this point, and as the plaintiff required these facts to be proved in a way which was not the only one authorized by the law, it will be presumed the proof was given which would sustain the judgment.

Judgment affirmed,

Judge Pef.ey presided below, and did not sit.

a 1 Stewart 63.