Huggins v. Powell

19 Ala. 129

• Court: Supreme Court of Alabama
• Decided: January 15, 1851
• Status: Published

Opinion

DARGAN, C. J.

The proceedings in this case were conducted in conformity to the act of the 27th of January, 18455 without notice to the sheriff, or any of his securities, and the judgment is for the entire amount of the execution, which the .sheriff failed to return. The judgment cannot be sustained, for by the act of the 3rd of March, 1848, the sheriff is entitled to three days notice of a motion against him for failing to return an execution. — See pamphlet acts of 1848, p. 95. In this case no notice was given to him, or to Ms securities, but on the call of the execution docket, on the first day of the term, it was suggested to the court, that the motion would be made, and the motion was then entered on the motion docket, and set for trial. The act of 1848 repeals the act of 1845, in reference to motions against officers for failing to return executions, and they must now have three days notice of the motion before judgment can be rendered against them for such default.

The judgment is also erroneous in amount. The act of 1848 allows a recovery only of twenty per cent, upon the amount of the execution which the sheriff failed to return.

Let the judgment be reversed.