Chaney v. Buford Lumber Co.

• Decision Date: 21 January 1902
• Court: Alabama Supreme Court
• Parties: CHANEY ET AL. v. BUFORD LUMBER CO.

31 So. 369

132 Ala. 315

CHANEY ET AL. v. BUFORD LUMBER CO.

Supreme Court of Alabama

January 21, 1902

Appeal from circuit court, Jackson county; A. H. Alston, Judge.

Action in trespass by the Buford Lumber Company against C. V. Chaney and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. E Brown, for appellants.

Martin & Bouldin, for appellee.

HARALSON J.

1. Two judgments were obtained in the justice's court against L D. Wilbourn, one on the 19th February, 1894 for $86.75, besides costs, and the other on the 16th November, 1895, for $90.79 and costs. On these judgments executions were issued by J. M. Thompson, J. P., on the first judgment in favor of Coffey & Gould, on the 13th of October 1899, returnable on the 13th of December, thereafter, and on the second, in favor of Smith Sons Gin & Manufacturing Company, on the 23d of December, 1899. Both these executions coming to the hands of the constable, were levied the same day,--the 3d of November, 1899,--on personal property of the defendant in execution, L. D. Wilbourn, viz., 30,000 feet of poplar lumber and 20 logs, the same being at Boozer's Mill. Both executions were returned by the constable to the justice, one, on the 12th and the other, on the 22d December, 1899, the one indorsed, "Returned for want of time to sell the above property; issue an order of sale;" and the other, "Returned for an order of sale, to sell the above property under," each writ returned one day before the return day thereof. The justice issued an order of sale of the property, one dated the 12th, and the other the 23d December, 1899, in form as provided by section 1913 of the Code, issued by clerks of the circuit court to sheriffs, when goods levied on remain in their hands unsold.

We find no provision in the statute for the issuance of such an order of sale by a justice of the peace to a constable, when personal property remains in his hands unsold at the return day of the execution. It was held in Mitchell v. Corbin, 91 Ala. 599, 8 So. 810, that "the statute does not provide for the issue of a venditioni exponas, on the return of an execution issued by a justice of the peace and levied on personal property remaining unsold, but only when land is levied on, and its sale is ordered by the circuit court, or court of like jurisdiction. Code 1886, § 3362 (Code 1896, § 1950). In the absence of a statute, an officer levying an execution on personal property acquires a right of possession, and a special property. This right of possession and special property, and the duration of the lien after the return day, confers on the officer making the levy authority, notwithstanding the return day may have passed, to sell the property. Ryan v. Couch, 66 Ala. 244; Bondurant v. Buford, 1 Ala. 359, 35 Am. Dec. 33." Bruister v. Gavin (Ala.) 28 So. 410; 2 Freem. Ex'ns, § 202.

These orders of sale by the justice, therefore, were of no avail, conferring no power on the constable, in addition to what he already had under the executions.

2. The constable returned the executions to the justice's court whence they issued, and no executions were issued thereafter, so far as appears. The levy of the executions, in the first instance, on the property described in them, created a lien on this property, which might have been continued under the writs after they were returned to the justice, as long as they were regularly issued and delivered to the officer making the levy, without the lapse of a term. But no alias ever having subsequently issued after the return of the writs, and a term having lapsed, the lien was lost. Code, § 1892; Collier v. Wood, 85 Ala. 92, 4 So. 840; Carlisle v. May, 75 Ala. 502; Perkins v. Coal Co., 77 Ala. 403. By statute, justices of the peace, must designate certain days, at least once a month, and appoint a particular place within their precincts for the trial of civil causes. Code, § 2666.

These executions, as we have seen, were issued on the 13th October and 16th November, and were returnable on the 13th and 23d December, 1899, respectively. It may be, if the constable had not returned but held these writs, for the purpose of making sales under them, the liens of the plaintiffs might have been preserved. Ryan v. Couch, supra; Bruister v. Gavin, supra; Code, § 1938. But this question we need not decide. When the constable returned the executions after their levy, they ceased to be under his control, or furnish him any authority to act under them. The writ, on being returned, even before the return day, becomes functus officio. Or, as elsewhere expressed, "Whenever process is returned to the proper court, or its return day has passed, it ceases to have any effect, its mandate having been performed, and if the plaintiff wishes to proceed further, additional proceedings must be had." Brown v. Baker, 9 Port. 503; Waldrop v. Friedman, 90 Ala. 157, 7 So. 510, 24 Am. St. Rep. 775; 11 Am. & Eng. Enc. Law (2d Ed.) 648, 649.

The evidence shows, without conflict, that the property was allowed by...