Sandlin v. Anderson, Green & Co.

76 Ala. 403

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMERYILLE, J.

— The courts of thé State are presumed to judicially know who are the various commissioned officers within its limits, and to know the extent of their authority, and the genuineness of their official signatures. This principle is applicable to justices of the peace, and authorized the admission in evidence of the justice’s execution against Conant, as prima faeie correct, without any proof as to his signature or personal identity.— Coleman v. The State, 63 Ala. 93; 1 Greenl. Ev. (14th Ed.) § 6; 1 Whart. Ev. § 324; 1 Brick. Dig. 805, § 22; Watson v. The State, 63 Ala. 19.

This execution was not void because it was issued more than six months after the Rendition of the judgment on which it was based. An execution issued on a dormant judgment, after the time prescribed by statute, like one that is issued prematurely, is only irregular and voidable. It is not void. — Steele v. Tutwiler, 68 Ala. 107, 110; Herman on Ex. § 64; Morgan v. Evans, 22 Amer. Rep. 154 ; Code, 1876, § 3658.

Such an irregularity, although erroneous, when directly assailed by motion to quash, or otherwise, can not be attacked collaterally. — Freeman on Ex. § 25. On the trial of a statutory claim suit, like the present, it is a settled rule, that the claimant can not take advantage of any defects in the execution, or other process, which do not render it absolutely void. — Ellis v. Martin, 60 Ala. 394; 1 Brick. Dig. 165, § 155.

The forthcoming bond executed by Conant, under which he retained the property in controversy in his own possession, was admissible in evidence as one of the file of papers, evidencing a part of the proceedings in the cause, of which courts commonly take judicial notice, — 1 Whart. Ev. § 325. It was competent, also, to show possession of the property by Conant, which wasprima facie evidence of his ownership, being a part of the res gestae of such possession. — Calvert v. Marlow, 18 Ala. 67.

The rule in this State is, that the retention by the mortgagee of the possession of personal property included in the mortgage becomes a badge of fraud, only when prolonged an unreasonable length of time after the day of default. — Benedict v. Renfro Bros., 75 Ala. 211; Hopkins v. Scott, 20 Ala. 179; Simerson v. Branch Bank, 12 Ala. 205; Jones on Chat. Mortg., §380; Herman on Chat. Mortg. § 100.

The court erred in the last charge given, by assuming as proved one or more facts which the evidence only tended to establish as true. This was an invasion of the province of the jury, and is a reversible error. — Jones v. Fort, 36 Ala. 449; McKenzie v. Branch Bank, 28 Ala 606 ; McDougald v. Rutherford, 30 Ala. 253.

The other points raised need not be decided, as they are not likely to arise upon another trial.

Reversed and remanded.