McDowell v. State
| Decision Date | 11 June 1942 |
| Docket Number | 6 Div. 5. |
| Citation | 243 Ala. 87,8 So.2d 569 |
| Parties | McDOWELL, Sheriff, v. STATE. |
| Court | Alabama Supreme Court |
Evans Dunn, of Birmingham, for appellant.
Thos S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw Thornton, Asst. Attys. Gen., for appellee.
Appeal by Holt A. McDowell, as Sheriff of Jefferson County, Alabama from a decree rendered by the Circuit Court of Jefferson County, Alabama, in equity, in an action instituted by the State of Alabama for a declaratory judgment. Title 7, § 156 Code of 1940.
The cause was submitted upon an agreed statement of facts, from which it appears that on October 31, 1941, the State of Alabama obtained a judgment against Fred J. Bodeker in the Circuit Court of Jefferson County, Alabama, in an action of debt to recover the amount due by Bodeker for privilege license for operating a detective agency in Jefferson County Alabama. On December 1, 1941, a writ of execution was duly issued by the clerk of the Circuit Court of Jefferson County, directed to appellant as sheriff, in regular form. Pursuant to the mandates of the execution, appellant, as sheriff, levied on certain real estate located in Jefferson County, the property of Bodeker. The property was advertised for sale on the 16th day of February 1942. On that date the property was duly and legally offered for sale, but no bidders appeared, and the sale was continued for one week, or until February 23, 1942. Appellant notified the Attorney General of Alabama, as attorney for the plaintiff in the action against Bodeker, that the sale had been so continued, and requested instructions as to the proper procedure in the event there were no bidders at the sale on February 23d.
On February 23d the property was again duly and legally offered for sale and no bidders appeared, and Hon. J. Edward Thornton, an Assistant Attorney General of the State of Alabama, for and on behalf of the State of Alabama, bid $333.33 for the property, which, it is agreed, was its fair and reasonable market value. The Assistant Attorney General, on behalf of the State, offered to pay all fees and costs, and to credit the judgment against Bodeker with the amount of the bid, namely, $333.33, and demanded that appellant as sheriff execute to the State of Alabama a deed to the property. Appellant refused to execute the deed. Hence, the bill of complaint seeking a declaratory judgment to determine whether under the foregoing facts appellant must execute a deed to the State of Alabama, and credit the judgment against Bodeker with the amount of the State's bid.
The trial court entered a decree to the effect that appellant, as sheriff of Jefferson County, Alabama, is in duty bound to execute the deed and credit the judgment with the amount of the State's bid, after the payment by the State of all costs and fees incident to the suit and sale.
Two errors are assigned-(1) The trial court erred in holding that the State of Alabama, as a judgment creditor, can purchase property at an execution sale under said judgment. (2) The trial court erred in holding that the Attorney General may purchase property on behalf of the State at an execution sale where the State is judgment creditor.
The question involved is not whether the State may, in general, bid in competition with other bidders for property offered at execution sale, but may the State in order to avoid the loss of the fruits of its own judgment bid at an execution sale had to satisfy the judgment when there are no other bidders?
Section 72, Title 7, Code of 1940, provides: "The state may sue in its own name, and is entitled to all remedies provided for the enforcement of rights between individuals, without giving bond or security or causing affidavit to be made".
This Court held in the case of Turner v. State, 226 Ala. 269, 146 So. 601, that the State may maintain a civil action as for debt to recover specific and ascertained license taxes imposed by statute, where the statute does not indicate any exclusive remedy. Clearly, the State has the right to reduce its claims to judgment.
Ordinarily, a judgment creditor may become a bidder, and may be accepted as a purchaser at an execution sale. Prevost v. Gratz, 6 Wheat. 481, 513, 5 L.Ed. 311; Martin v. Branch Bank, 15 Ala. 587, 50 Am.Dec. 147; Fabel v. Boykin, 55 Ala. 383, 386; Walker v. Elledge, 65 Ala. 51, 56; 23 Corpus Juris 644, section 605; 21 Amer. Jur. 110, section 215.
In a situation analogous to that here presented, it was held that a city, a subdivision of the state, which had the right to maintain an...
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