Opinion
8 Div. 171.
May 1, 1919.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bardford, of Guntersville, for appellant.
John A. Lusk Son, of Guntersville, for appellees.
It does not appear anywhere in the record of the judgment obtained by the Line Creek Coal Coke Company against the Sand Mountain Electric Company, a corporation, which judgment was rendered by default, that proof was made that the person on whom service was had was an officer or agent of the defendant corporation. Under the uniform decisions of this court, therefore, the judgment was void. Hitt Lumber Co. v. Turner, 187 Ala. 56, 65 So. 807, and authorities there cited. It is to be noted that the judgment was rendered and all proceedings were had long prior to the act of September 17, 1915, amendatory of section 5303 of the Code (Acts 1915, p. 607), and that this act is therefore without influence here.
As to whether or not the subsequent appearance of the defendant corporation making the motion to quash the execution and set aside the judgment upon the above-mentioned grounds, and then withdrawing the same and allowing judgment to be entered to this effect, would be material by way of ratification or estoppel between the parties, need not be here determined.
The execution placed in the hands of the sheriff was entirely valid and regular upon its face, issued by proper and competent authority out of a court of general jurisdiction, and which, of course, had jurisdiction of the subject-matter of the suit. In such a case, therefore, the sheriff, in executing the writ according to its mandate, is, by such execution valid and regular upon its face, protected. Ward v. Deadman, 124 Ala. 288, 26 So. 916, 82 Am. St. Rep. 172; Wilson v. Sawyer, 37 Ala. 631; Clark v. Lamb, 76 Ala. 406; Brown v. State, 109 Ala. 70, 20 So. 103; Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Spear v. State, 120 Ala. 351, 25 So. 46; Savacool v. Boughton, 5 Wend. (N.Y.) 170, 21 Am. Dec. 181, and note p. 190; section 5871, Code 1907.
The sheriff in the instant case, in obedience to the mandate of the execution, proceeded to a levy and sale of the defendant's property, and has admittedly on hand the sum of $330 as the proceeds of said sale. As a defense, he and his bondsmen attempt to set up the invalidity of said judgment upon the grounds above stated. It may be that, had the sheriff been proceeded against for a failure to execute the writ, he would have been permitted to interpose this defense by way of excuse therefor; but having proceeded to execute the writ and collect the money thereon, he is not in a position to now interpose such defense, but must account to the plaintiff therefor. We take the following pertinent excerpt from Clark v. Lamb, supra:
"It being the duty of the sheriff to execute the writ according to its mandate, if he levies upon and sells property of the defendant, under an execution issued on a judgment not superseded, or collects the money otherwise, he thereupon becomes liable to account to the plaintiff therefor, and no irregularity, not even the nullity of the judgment, will be an excuse for his refusal to account."
And in Hill v. Fitzpatrick, 6 Ala. 314, the following:
"It did not lie in the mouth of the sheriff to object that the judgment of the plaintiff had been satisfied by the payment of another judgment on the same bill. Having collected the money by the authority of an execution on a judgment of the plaintiff, he could not dispute his right to receive the money."
See, also, Nutzenholster v. State ex rel. Sumner, 37 Ind. 457; Watts, Adm'r, v. Colquitt, 66 Ga. 492; Boring v. Williams, 17 Ala. 510.
In Hill v. Fitzpatrick, supra, it is stated that in cases of this character it was not necessary for the plaintiff to produce the judgment upon which the execution issued. And doubtless the exclusion of the judgment in this case offered by the plaintiff would not be a matter as to which he could complain; but the court also excluded the execution, and we are of the opinion that in this there was reversible error.
As shown by the above authority, the execution being regular on its face, the sheriff was under no duty to go further and search behind the writ, but was protected thereby. The execution was offered for the purpose of showing that the sheriff collected the money thereunder by virtue of his office and so held the same. Having so collected this money, he is held to account to the plaintiff therefor, and, having received it in his official capacity, we see no reason why the judgment should not be rendered against the bondsmen as well as the sheriff.
For the error indicated, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.