Andrews v. Keep

38 Ala. 315

• Court: Supreme Court of Alabama
• Decided: January 15, 1862
• Status: Published

Opinion

R. W. WALKER, J.

[1.] To'“-execute process” is to perform its mandate. The mandate of a.,fieri facias is, that of the property of the defendant the sherifi cause to be made a specified sum of money ; and if the sheriff has failed to do this, he has failed to execute the fi. fa. -Hence, we conclude, that a failureito makethe money on an execution,is ¿failure to execute process,” within the meaning of section 2600 of the Code; <and, consequently, that the motion for this default may Re made, either in the circuit court of the county in which the sheriff was acting officially at the time of the default, or in the court to which the process 'was returnable. We adopt this construction of the statute the more readily, as we are satisfied that the practice of the bar of the State has been in conformity with it.

[2.] The court committed no error in rendering judgment without the intervention of a jury. In reference to this class of motions, the Code provides, that “ the court must hear and determine the motion, and render judgment upon the evidence, without a jury, unless an issue is tendered, and a jury trial demanded.” — Code, § 2§99. Here, the defendant did not tender an issue, and demand a jury trial; and it was the duty of the court, on proof .of the requisite facts, to render judgment for the plaintiff,» — See Irwin v. Scruggs, 32 Ala. 516.

The motion alleges all the facts necessary to render the defendant liable; and the minute-entry, after setting out the notice, recites that the plaintiff offered evidence to the satisfaction of the court showing the truth of the facts therein set forth. This sufficiently shows that the evidence authorized the judgment.

Judgment affirmed.