Samples v. Walker

9 Ala. 726

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

Opinion

GOLDTHWAITE, J.

The whole of this case amounts to no more than this. The sheriff, in defence of a motion against himself and sureties, attempts to shew, and succeeds in shewing, the execution ivas made returnable on an impossible day. This is only what the jfiaintiff in the motion had previously admitted in his notice, as the execution is there set out precisely as it afterwards appeared in evidence. It is the established rule, that no sheriff will be permitted to discharge himself on account of any irregularity in process. [Watson on Sheriffs, 53; McRae v. Colclough, 2 Ala. Rep. 74; Woods v. Bondurant, 1 ib. 543 ; Anderson v. Cunningham, Miner, 48.] There is no question the clerk committed a mistake, both in the year and the Monday of the month, in stating the time for the return, but this did not affect the sheriff, or make it the Jess his duty to make the money and return the process according to law. Although it may admit of doubt whether the notice is not defective in setting out what will be moved, yet this did. not warrant the court in charging that a recovery could not be had upon the evidence before the jury. For any thing which appears, the motion actually made was for not returning the execution.

Judgment reversed, and cause remanded.