Garrett v. Rhea

9 Ala. 134

• Court: Supreme Court of Alabama
• Decided: January 15, 1846
• Status: Published

Opinion

ORMOND, J.

The 2d section of the act of 1828, Clay’s Dig- 213, § 63, provides, that when property was levied on by virtue of an execution from another county, and a claim interposed to try the right, that the sheriff shall return the original to the county whence it came, with his return thereon, and make out a copy of the same, and his return thereon, •and return the copy to the court of the county in which the •levy was made; “ and the copy of such execution shall be sufficient for the court to proceed on, and try the right of the propertyleviedon.”

This the sheriff has done in this case, in strict conformity with the law. The copy, when thus returned by the sheriff, has the same effect as the original would have, in other cases, and his certificate is proof of all the facts contained in the copy so returned, precisely- as in the case of an original execution.

The fact that the venue was changed creates no difficulty. The copy there has the same effect as in the county from which it came. As it required no proof there to verify it, neither did it in St. Clair. By the change of venue, the clerk was required to send the original papers in the cause, and a transcript of the minutes and orders. He certifies that he has done so in this case, and this, with the other-papers, was sent up. This is sufficient, prima facie. If other papers are alledged to have been substituted, it devolves on the party making the objection to establish it. This precise objection was made and answered in the State v. Greenwood, 5 Porter, 482.

The statement introduced by consent,'if not legal evidence, did not work any prejudice, as the same ’facts were established by the return of the sheriff, except the value of the slave levied on.

The judgment in favor of the administrator de bonis non, is authorized by the statute, Clay’s Dig. 227, § 30. Let the judgment be affirmed.