Gibson v. Martin ( 1846 )

Reese, J.

delivered the opinion of the court.

The Circuit Court gave judgment, on motion, against Gibson, Coroner, and sureties, on motion, for the non-return of an exe^ cution.

This judgment, for more than one reason, is erroneous. The judgmenton the face of it states, and the Coroner’s bond shows, that the motion was not made against one Smith, a co-obligor in the bond. This court has decided, that this statutory remedy, by motion, must embrace all the sureties.

The only exception made is, where a surety is dead, and the administrator is not known, or there is none at the time of the motion.

2nd. It has not been proved, affirmatively, that the process was not returned. The Clerk says, that at the return term he was in Texas, and he saw no return entered on the return docket, and cannot find the execution. No deputy is sworn, or other person attending to business for the Clerk, at the return term.

The want of an entry in the execution docket does not prove, that the execution was not returned.

The presumption is not greater, that the clerk, or the clerk’s deputy, will do his duty, than that the sheriff or coroner will do his.

3rd. The original execution is not produced, and we cannot look at the copy on the minutes for the purpose of holding the return to be insufficient-, because such copy on the minutes was without authority of law, a matter of supererogation, and imparting no verity to the copy for the purpose of this motion.

Let the judgment be reversed, and the plaintiffs in error go hence, and recover their costs.