Cary v. Gregg

3 Stew. 433

• Court: Supreme Court of Alabama
• Decided: January 15, 1831
• Status: Published

Opinion

By JUDGE SAFFOLD.

The assignment of error presents the question, whether the issuance of the two ji. fa's., and the intervening ca. saon the prior judgment of the Court of record, returnable to successive terms of the County Court, when the latter fi. fa. was received by the sheriff, after the property had been levied on by virtue-■of the attachments, and was then levied on the same pro.-perty, created a lien on the property, in favor of the first judgment ereditor, which will prevail over that created by the attachments, and the proceedings thereon.

The statute of 1307,

a provides “that no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff,” Sic. It is to be observed, the language of this statute is applied to such executions as bind the property of the goods against which they may be issued; and is inappropriate to the nature of a capias ad satisfacien-dum, which according to the principles of the common law, could give the oiffeer no authority to seize property. Nor does the statute vary the effect of the ca. sa. unless where a debtor who has been arrested under it, may choose to tender property iu discharge of his body.b In that event the officer may receive and sell property, as if taken under a fi. fa. But unless there be such voluntary surrender, there is no authority to the officer holding the ca. sa. to intermeddle with the property, however abundant it may be.

Another part of the same statute has also some influence on this question. It directs “that when any execution shall issue, and the party at whose suit the samo is issued, shall afterwords desire to take out another execution, at °wn proper costs and charges, the clerk may issue the same, if the first writ be not returned and executed.”a It also allows judgment creditors to resort alternately to the writs of fi.fa., ca. sa. and elegit, on the unproductive return of either. Hut. what is considered most material, is that the clause last quoted, authorizes the plaintiff in judgment to sue out a fi.fa., and afterwards a ca. sa., or vice versa, on the same judgment, directed to the same, or different counties, and without waiting for the return of the former, on paying the costs of the latter. By the exercise of this privilege, he has the means of creating or continuing his lien on the defendant’s property, if he deems it necessary; and at the same time can avail himself of any benefit derivable from a ca. sa. As judgment creditors have this legal advantage, if they fail to avail themselves of it, they cannot complain of other more vigilant creditors, who by means of attachments, under circumstances warranting them, should acquire a preference.

If the act of January j 1S2S, relative to the satisfaction of executions, have any influence on the question, it must be to sustain the doctrine advanced, as it increases the facility of continuing the lien on judgments, or explains the previous law to the same effect: so that it is only necessary for that purpose, after placing the original fi. fa. in the hands of the proper officer, if it be not satisfied, to sue out an alias to the next term, and continue to renew the same from term to term. But it is expressly provided, “that if a term shall elapse, after the return of the first execution, before an alias shall be sued out, and delivered to the sheriff, the lien created by the first writ of execution, shall be cancelled and of no avail.” Here a term was permitted to elapse between Wallis’ original and alias fi. fa. It is true he sued out his ca sa. to the' intervening term, but it had not the effect of supplying the chasm in the lien; for though a ca. sa. or elegit, falls equally within the definition of the term “execution,” used in the statute referred to, yet the former is not an execution which may be issued against goods, &c., as contemplated by the statute first quoted; nor is there any necessity for giving the statutes a strained construction to embrace it, as we think a plaintiff may sue out an alius fi.fa., without obstructing his right to a ca. sa., during the time the former may be in the hands of the sheriff, or other officer.

It then only remains to be considered, whether the attachments created a lien on the property, from the time of the levy? On the part of the defendant in error, it it contended that as the attachments were not against defendant therein, as an absconding debtor, the levy not create a lien in favor of the attaching creditors; but that it was merely a different mode of compelling an appearance, which.the defendant might have discharged entering special bail; whereas, the delivery of the execution to the sheriff, created a perfect lien on the property. On the opposite side, it is insisted, and found to he true, that the record does not shew whether the attachments issued as against an absconding debtor, or otherwise; also this is contended to he immaterial, in as much as the property was not replevied. The statute,a after authorizing under proper circumstances, the issuance of either a judicial attachment, or an alias or phiries capias, at the election of the plaintiff, provides that goods which may be attached under the former, if not replevied or sold, according to the rules therein after prescribed, for goods taken on original attachments, shall remain in the custody of the sheriff until final judgment: and then bo disposed, of in the same manner as goods taken by execution on a writ of fieri facias. The same statute, after treating of original attachments, and directing the manner of executing them, declares that after an attachment shall have been levied, whether in the case of an absconding debtor or otherwise, “the goods, money, or effects so attached, shall remain in "the officer’s power, and be by him secured, in order to answer and abide the judgment of the Court in fhat case, unless the garnishee will give security for the same.” Admitting that by another part of the same, and a subsequent statute, any person against whose estate, any attachment has issued, upon giving special bail, may replevy the estate, except in case of absconding debtors, where the security in the replevin bond shall he required to return the specific property attached, or pay and satisfy the judgment; yet the right to reply cannot impair the lien created by the levy, if it be not done by giving special bail. That a lien is created in favor of attaching creditors, I think is sufficiently shewn by the statutes referred to. In this case the attachments were levied before the execution came to the hands of the sheriff, and the execution, for the reasons given, could have no other effect than belongs to an original fieri facias. We are therefore unanimous in the opinion, that the judgment must be reversed.

Judgment reversed.

Judge White, not sitting.

Laws of Ala. 294.

Laws of Ala. 297.

Laws of Ala 293.

Laws of Ala 12.