Harrison v. Hamner

• Decision Date: 28 April 1893
• Citation: Harrison v. Hamner, 99 Ala. 603, 12 So. 917 (Ala. 1893)
• Parties: HARRISON ET AL. v. HAMNER.
• Court: Alabama Supreme Court

12 So. 917

99 Ala. 603

HARRISON ET AL. v. HAMNER.

Supreme Court of Alabama

April 28, 1893

Appeal from city court of Gadsden; John H. Disque, Judge.

Detinue by D. T. Hamner against J. A. Powers. A motion to quash an execution on the bond was denied, and the sureties appeal. Reversed.

Geo. D Motley, for appellants.

Dortch & Martin, for appellee.

STONE C.J.

The replevin bond given in this case is clearly not a statutory bond, upon which a summary execution could issue, when the sheriff returned the bond forfeited. The execution was therefore irregular, and subject to be quashed on a proper motion. Code 1886, § 2721; Lunsford v. Richardson, 5 Ala. 618; Moffit v. Bank, 7 Ala. 593; Bank v Darrington, 14 Ala. 192; Russell v. Locke, 57 Ala. 420. The bond, however, is a good common-law obligation and will support an action for its breach. Wood v Coman, 56 Ala. 283; Masterson v. Matthews, 60 Ala. 260; Ernst v. Hogue, 86 Ala. 502, 5 South. Rep. 738. Counsel for appellee do not gainsay the foregoing propositions, but they contend that they are, for certain specified reasons, inapplicable to the case presented in the record before us.

1. It is contended that, for the purposes of the motion to quash the city court of Gadsden cannot be regarded as being in session when this motion was ruled on. The precise point of this contention is that under the statute creating that court, approved February 18, 1891, (Sess. Acts, pp. 1092-1103,) it is enacted "that final judgments rendered in said court shall, after the expiration of ten days from their rendition, be taken, and deemed as completely beyond the control of the court as if the terms of the court at which such judgments are rendered had ended, at the end of said ten days," with certain provisos, not material to a proper decision of this case. Section 27, p. 1102. The motion to quash was made more than 10 days after the judgment was rendered in the detinue suit. There is nothing in this objection. The execution which the motion sought to quash was not issued pursuant to any order of the court; and granting the motion would in no sense have been the taking or assertion of control over the judgment of the court. It was a statutory execution, issued by the clerk on the return of the bond forfeited, sometimes called an "office judgment." A further reason: A motion to quash an execution, it would seem, could never involve interference with or change of the judgment of the court. The inquiry on such motion must needs be whether or not, under the judgment rendered and the attendant facts, the process of execution and its enforcement are justified under the law. Such motion may be acted on at any time when the court is in...