Tombeckbee Bank v. Godbold , 3 Stew. 240 ( 1830 )

By JUDGE COLLIER.

The points of law arising in this cause, are 1st. Was the production of a judgment essential to the plaintiffs recovery. 2nd. Does the statement copied from the record constitute a judgment.

1st. The action for the false return of an execution, is given as an indemnity to the plaintiff for any injury he may sustain by it. It would therefore seem that where no injury results from a return not true in point of fact, that the plaintiff is not entitled to recover.

If a writ of execution issues without a judgment for its warrant, it may be quashed, because the party suing it out ^as nG*: entitle^d him,■self to it. Yet so long as it co'tt» tinues in force, it is a sufficient authority .to the officer t@ whom it is directed, for obeying its mandate. But if he should disregard its direction, it would be incumbent on the party seeking to recover for a failure to execute it, to shew that the execution was issued under the authority of a judgment.^a

Though the action on the'case is given by statute against a Sheriff'forá false return of an execution, yet this statute can only be regarded as declaratory of the procedure. It does not profess to interfere with the nature of the action, and the principles which control it' as a common law re:medy. It is an action sounding in damages, the measure mnd extent of which, must depend upon the circumstances of each particular case.^b Hence the plaintiff, to entitle himself to a recovery, must prove he has sustained damages, and to what extent, and in this-regard, it would seem to differ -very materially from the action of debt, which is’more appropriately applicable as a remedy to cases in which the duty is' certain. So a motion under the statute against the Sheriff, for a failure to collect an execution-, Which from negligence or some other cause he omitted, cannot be assimilated in all respects to the action on the ease. But whether in such a proceeding, the production of the judgment can be required of the party making the motion, is a question upon which, as it is not involved in this controversy, we forbear to declare our opinion.

‘With regard to the second point, we are of opinion that the statement offered in the Court below for a judgment, cannot be considered as such, but must be viewed as a mere memorandum of the Clerk, from which a final judgment could thereafter be drawn up, which in the absence of a disclosure by the record, we cannot presume has been done.^c Nor is proof of the writ of execution evidence of a judgment, as against the-defendant who was a stranger to it.^d A judgment is the act of the Court, anq should so profess to be, but this memorandum bears no evidence which indicates a judicial act.

The plaintiff having failed to produce a judgment authorizing the issuance of the execution, on which the defendant is charged to have made a false return, the judgment must be affirmed.

Judgment affirmed.

The Chief Justice ’and Judge Sattold, not sitting-

a 3 Starkie's Ev. 1344.

b 2 Mason’s Rep. 513. T. R. 129.

c 2 Bibb 60. 1 Tenn. Rep. Ragan v. Kennedy.

d Dong. 40.