Jefferson County Sav. Bank v. McDermott

• Decision Date: 06 November 1891
• Citation: 10 So. 154,99 Ala. 79
• Parties: JEFFERSON COUNTY SAV. BANK ET AL. v. MCDERMOTT ET AL.
• Court: Alabama Supreme Court

10 So. 154

99 Ala. 79

JEFFERSON COUNTY SAV. BANK ET AL. v. MCDERMOTT ET AL.

Supreme Court of Alabama

November 6, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge. Affirmed.

Bill by McDermott et al. to set aside for fraud a sale of a stock of goods by B. F. Eborn to Jefferson County Savings Bank. From a judgment for plaintiffs, defendants appeal.

The bill was filed by the appellees against B. F. Eborn and the Jefferson County Savings Bank, and sought to set aside, as fraudulent, a sale of a stock of goods. The original bill in the present case was filed on September 15, 1886, and the return of the sheriff shows that the service of process in the present suit was made on the Jefferson County Savings Bank and B. F. Eborn on September 15, 1886. The complainants are creditors of Eborn subsequent to the execution of said bill of sale to the Jefferson County Savings Bank, as first made on May 30, 1886; and the city court of Birmingham rendered a decree dismissing complainant's bill, on the ground that said bill of sale was not void as to subsequent creditors. On appeal the judgment was reversed. After this reversal, the cause coming up again to be heard in the city court of Birmingham, the Jefferson County Savings Bank filed an answer in the nature of a cross-bill and amended sheriff's return, so as to show the priority of the lien of the defendant, and the Jefferson County Savings Bank also filed motions to so amend the sheriff's return. The complainants filed a motion to dismiss the cross-bill, and demurred thereto, and also moved to strike from the files the amended motion of the Jefferson County Savings Bank. The complainants' demurred both to the cross-bill of the Jefferson County Savings Bank and to its motion to amend the sheriff's return. The complainants' demurrer to both the cross-bill and the amended motion was sustained The cause then being submitted on the pleadings and proof, a decree was rendered in favor of the complainants. Defendants appeal.

W C. Ward and E. K. Campbell, for appellants.

Mountjoy & Tomlinson, for appellees.

WALKER J.

When this case was here on a former appeal, it was decided that the bill of sale to the Jefferson County Savings Bank was fraudulent and void as against the complainants, and that, if the process in this suit was served on the defendants prior to the levy of the attachment sued out by the bank against Eborn, then the lien of the complainants would be superior to that of the bank. No disposition having been made by the trial court of the motion which had been made for the amendment of the sheriff's return of the process in this case, so as to show a priority in the levy of the attachment the cause was remanded, in order that some action might be taken on that motion. McDermott v. Eborn, 90 Ala 258, 7 South. Rep. 751. After the remandment of the cause the defendant bank amended its motion to set aside and correct the sheriff's return on the process in this case, and alleged in the amended motion that the sheriff whose return was sought to be corrected was then dead. The same relief as to the correction of the return indorsed on the process was also sought by a cross-bill interposed by the bank. The complainants' demurrers to the amended motion and to the cross-bill were sustained. That action of the trial court is now assigned as error. The practice in the courts of this state of granting leave to a sheriff to amend his return of process, so that it may conform to the facts, is well established and is approved. Wilson v. Strobach, 59 Ala. 488; Daniels v. Hamilton, 52 Ala. 105; 3 Brick. Dig. p. 745; 2 Brick. Dig. p. 456. A different question is presented when it is sought to compel the sheriff to change his return as to a matter of fact, or to have the court substitute its finding as to the facts of the service of process in the place of the officer's return. When the officer does not consent to the proposed correction, and the application is contested, a separate issue is presented for trial. It seems that the courts have regarded it as a matter of necessity to give credence to the official return of the service of process, in order to avoid the embarrassment of turning aside to try such collateral issues; and that a party who has been injured by a false return cannot dispute it in that case, but must seek redress by proceedings against the officer. Brown v. Turner, 11 Ala. 752; Crafts v. Dexter, 8 Ala. 767; Martin v. Barney, 20 Ala. 369; Boas v. Updegrove, 5 Pa. St. 516; Vastine v. Fury, 2 Serg. & R. 426; Bolles v. Bowen, 45 N.H. 124; 2 Freem. Ex'ns, §§ 358-369; Murfree, Sher. § 868. It is not necessary to...