Garrett v. Cobb

• Decision Date: 21 December 1916
• Docket Number: 1 Div. 943
• Citation: 199 Ala. 80,74 So. 226
• Parties: GARRETT, Sheriff, v. COBB.
• Court: Alabama Supreme Court

74 So. 226

199 Ala. 80

GARRETT, Sheriff, v. COBB.

1 Div. 943

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 15, 1917

Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.

Petition by Z.T. Cobb for mandamus against S.C. Garrett, as sheriff to require him to return a certain replevy bond as forfeited or else show cause why he could not do so. From an order granting the writ respondent appeals. Affirmed.

The petition shows that petitioner was sued in the circuit court of Barbour county in detinue for certain personal property which was described, and that a writ was issued, and under said writ the sheriff seized the property, and that plaintiff in detinue, Frank M. Ladd & Co., executed a plaintiff's replevy bond as provided by section 3780 of the Code of 1907; that the bond was taken and approved by the sheriff, and the property seized was taken and delivered to plaintiffs, their agents or attorneys; that said cause was duly tried, and a judgment rendered in favor of plaintiff for the property seized, and the mortgage indebtedness due by defendant to plaintiff was ascertained by the jury to be $322.75, and the presiding judge entered the order that if the debt ascertained, together with the interest and costs, be paid by defendant within 30 days from this date, no execution or other process will issue on the judgment. The petition alleges the payment within 30 days to the clerk of the judgment, and the interest and the costs by petitioner, and that, notwithstanding this, the sheriff has failed and refused upon demand to deliver to petitioner the personal property seized, and has failed and refused to return as forfeited plaintiff's replevy bond. It is then prayed that the writ of mandamus issue to compel a return of plaintiff's replevy bond as forfeited, or else to show cause why he should not do so. The demurrers raise the question that the writ was not an alternative writ, but is specific, and fails to give respondent any alternative, and affords no alternative for respondent to perform the required act. Motion to quash the writ is based on the same ground. It is also urged that petitioner had other and adequate remedies.

T.J Bedsole, of Grove Hill, for appellant.

William D. Dunn, F.E. Poole, and Q.W. Tucker, all of Grove Hill, for appellee.

SAYRE J.

The alternative writ in mandamus is not process merely, but both process and pleading. Longshore v. State ex rel. Turner, 137 Ala. 636, 34 So. 684. Section 4864 of the Code provides that "any of the pleadings in such proceedings may be amended as often as occasion may require to attain the ends of justice."

Assuming that the writ in this case was amended so as to leave with respondent the alternative of returning the bond forfeited or showing cause why it should not be so, instead of commanding him to show cause why the bond had not been forfeited, as perhaps the original writ did--though from the record it is not at all clear that this was the effect of the amendment allowed--the amendment left open the way to respondent either to return the bond forfeited, and thus put...