Henderson v. Planters' & Merchants' Bank of Ozark

• Decision Date: 29 June 1912
• Citation: 178 Ala. 420,59 So. 493
• Court: Alabama Supreme Court
• Parties: HENDERSON v. PLANTERS' & MERCHANTS' BANK OF OZARK.

59 So. 493

178 Ala. 420

HENDERSON v. PLANTERS' & MERCHANTS' BANK OF OZARK.

Supreme Court of Alabama

June 29, 1912

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Proceeding by J. E. Henderson against the Planters' & Merchants' Bank of Ozark to supersede the enforcement of an execution and to vacate a judgment on which it was founded. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Riley &amp Carmichael and W. W. Sanders, both of Elba, for appellant.

J. E Z. Riley, of Ozark, for appellee.

MAYFIELD J.

This is a proceeding instituted by appellant to supersede the enforcement of an execution and to vacate and annul the judgment upon which it is founded, upon the ground that the judgment has been paid and satisfied. The proceeding in this state is a substitute for the ancient writ of audita querela.

In the case of Thompson v. Lassiter, 86 Ala. 540, 6 So. 33 it is said: "In our practice, the proceeding by supersedeas is substituted for the writ, and generally will lie in the cases in which a writ of audita querela would lie at common law. Matter which operates an equitable satisfaction of a judgment may be inquired into by this proceeding, and an execution issued to enforce the judgment may be superseded and vacated; but matters which go behind the judgment cannot be inquired into. Br. Bank of Mobile v. Coleman, 20 Ala. 140; Mervine v. Parker, 18 Ala. 241."

The proceeding with us is regarded as one in the nature of a bill in equity, but not to require the same strictness of pleading.

Appellee obtained a judgment against appellant for $6,514.20. The judgment was obtained at the spring term of the circuit court of Coffee county, which was held at Enterprise. The date of the judgment was February 22, 1910.

It is shown without dispute that appellant paid $3,000 on October 10, 1910; paid $1,000 on October 19, 1910; and paid $1,070.40 on January 31, 1911.

The matter in dispute is as to several payments which appellant claims to have made to sheriff of Coffee county, and for which he holds the sheriff's receipts. The sheriff seems to have absconded; he could not be had as a witness, nor could his deposition be secured. Only one execution or copy thereof could be found, and that appears to have been issued January 27, 1911; and it contains only, as credits, the $3,000 and $1,000 payments above mentioned.

Appellant claims, however, that he paid to the sheriff on this judgment $100 on the 7th of March, 1910; $528 on the 21st of March, 1910; $500 on the 11th of June, 1910; and $500 on the 19th of August, 1910. Each and all of these payments are disputed. The appellant, however, testified positively as to the payment of each of said amounts, and produced the sheriff's receipt therefor; but it is claimed by the appellee that such alleged payments would not be binding on it nor chargeable as payments on the judgment, because it is not shown that the sheriff held an execution in his hands at the times the payments were made, and that it is not shown that an execution had issued on this judgment when the sheriff received the payments, and that it is not shown that the sheriff had any authority, as agent for the plaintiff in judgment, to receive the payments.

Search was made, but no corresponding execution, prior to these dates, could be found; and the clerk's and the sheriff's books and records failed to show the issuance or the existence of any execution at the times of the alleged payments. The plaintiff testified, however, that the sheriff did have such an execution in his hands, at the times of the payments; and that he told appellant, at the time of the payments, that he did have such an execution; that appellant saw the paper, but did not read it, and therefore did not know, of his own knowledge, the contents thereof. He also testified that the sheriff told him, at the time he made the payments, that the appellee, the plaintiff in the judgment, had instructed the sheriff to collect this money.

The appellant, as a witness, testified, among other things, as follows: "Yes, at the time Mr. Knight came to me for this money, he told me what he was collecting it for. Yes, he had the execution in his hand. He told me that Mr. Sessions (an officer of the Planters' & Merchants' Bank of Ozark) had phoned him to collect a part of that judgment against J. E. and W. E. Henderson. Yes, after he told me this I would instruct the payments made by my bookkeeper. Yes, I recollect a conversation I had with Mr. Knight in reference to the collection of this judgment that he held, which conversation took place when one of those payments were made. At the time this conversation took place, we were in my office, and I requested Mr. Knight to leave the execution there in the office and mark those credits upon the execution at the time and as I would pay them. He replied to this, 'No, I will issue you a receipt every time you make a payment, as I have to have a copy of the execution for my office files.' He said he would write a receipt every time money was paid on it. Yes, I say that Mr. Knight had the execution in his hand at that time. I do not know where Mr. Knight is at this time. Yes, I have made an effort to get Mr. Knight here. He left here during last court and after court had been called. I think it was Monday or Tuesday of the last term of the court here when he left. He left about the time this case was called for trial."

The appellant, also in order to show authority for, or a ratification of, the payments made to the sheriff, introduced in evidence a letter from the attorney of appellee, plaintiff in judgment. This letter was as follows: "Ozark, Ala., Dec. 14th, 1910. Mr. J. E. Henderson, Enterprise, Ala.--Dear Sir: I have agreed with Mr. Jim Knight that if you will send me New York Exchange for one thousand nine hundred and eighty-six dollars and ninety-eight cents ($1,986.98) by tomorrow afternoon's mail that we will wait for the other nine hundred dollars which is to bear interest until Dec. 28th, this year, this agreement does not hold if this amount is not received by to-morrow afternoon's mail. Yours truly, J. E. Z. Riley."

The trial court, on appellee's motion, excluded all of appellant's evidence, including that we have set out, and gave the affirmative charge for appellee. We think there was reversible error in this action of the court. This, as we have shown, is an equitable action, and under the evidence in this case it was open for the jury to infer that an execution had been issued, and was in the hands of the sheriff when the plaintiff made the disputed payments, or claims that he made them. While the fact that the execution could not be found and the dockets showed no issuance of execution is a strong circumstance to show that none was issued, and therefore none could have been in the hands of the sheriff, yet one may have issued and may have been in the hands of the sheriff, under the peculiar proof shown in this case. The sheriff had absconded, and may have carried the writ with him, to shield himself and his bondsmen; and the deputy clerk, who could have issued the writ and probably did so, if in fact one was issued, was dead. It was also open for the jury to infer that plaintiff in execution had authorized the sheriff to collect the judgment. And so, of course, it was error to exclude this evidence, or to direct a verdict against the petitioner.

Payment of a judgment, to operate as a release or satisfaction, even pro tanto, must be made to the plaintiff or to some person authorized by him, or by law, to receive it. There are, of course, exceptions as to joint...