Northern Alabama Ry. Co. v. Lowery

• Decision Date: 30 November 1911
• Citation: 57 So. 260,3 Ala.App. 511
• Parties: NORTHERN ALABAMA RY. CO. v. LOWERY.
• Court: Alabama Court of Appeals

57 So. 260

3 Ala.App. 511

NORTHERN ALABAMA RY. CO. v. LOWERY.

Court of Appeals of Alabama

November 30, 1911

Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.

Action by W. D. Lowery against the Northern Alabama Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bankhead & Bankhead, for appellant.

Williams & Jones and B. H. Sargent, for appellee.

DE GRAFFENRIED, J.

A large judgment was obtained against appellant in the circuit court of Franklin county, and from that judgment an appeal was taken to the Supreme Court. The judgment was affirmed by the Supreme Court, and a certificate of that fact was mailed by the clerk of the Supreme Court to the clerk of the circuit court of said county. The certificate of affirmance was received by the clerk of the circuit court on March 12, 1910, and on that day the said clerk issued an execution for the amount of the judgment and costs, and placed the same in the hands of appellee, who was the sheriff of said county. On the 15th day of March, 1910, appellee, as such sheriff, made an alleged levy of the execution on the following as the property of appellant: Six miles of railroad track, roadbed, and right of way thereto belonging along the said six miles of railroad track, commencing at the twenty-first mile post north of depot of said Northern Alabama Railway to the twenty-seventh mile post south of Isbell, Ala. On the 16th day of March, 1910, appellant met the said clerk in the city of Birmingham, and the amount of the judgment and all costs were paid to the clerk on that day, except that nothing was paid as commissions for the sheriff, accruing subsequent to the issuance of said execution on March 12, 1910. On the same day (March 16 1910), the sheriff notified one Gavin, depot agent of appellant at Russellville, Franklin county, of the levy made by him as above stated. This suit was brought by appellee, as sheriff, against appellant for the commissions which he alleges appellant owes him in and about the collection of the amount due on said judgment.

1. In the case of Farmers' Union Warehouse Co. v. McIntosh 1 Ala. App. 407, 56 So. 102, this court held that the act "to amend section 909 of the Code of 1896, so far as the same relates to the times of holding the circuit courts of Franklin county, Alabama," approved November 23, 1907 (Loc. Laws Sp. Sess. 1907, p. 32), was not affected by the adoption of the present Code. It was also determined in that case that all of our constitutional requirements were complied with in the passage of the act and that the act was valid.

2. In the absence of instructions to the contrary from the plaintiff in the judgment, it was the duty of the clerk of the circuit court of Franklin county to speedily issue execution thereon, upon the receipt of the certificate of affirmance from the clerk of the Supreme Court. The larger the judgment, the more important the duty of issuing execution thereon; and we know of no law which authorizes an investigation into the purposes of a public officer, when he acts in accordance with the law and in the performance of a duty required by the law. The law condemns motives and intents only when they are carried into an act which is itself illegal. Carter Bros. & Co. v. Coleman, 84 Ala. 256, 4 So. 151. When the sheriff re-received the execution, it was his duty, in the absence of instructions from the owner of the judgment not to do so, to levy the execution upon sufficient property of the defendant in the execution, subject to levy and sale, to satisfy it, if he could find it. "He must execute the writ with diligence." Code, § 4098.

3. The following sections of the Code treat of the same subject-matter for which the common law made no provision and, as they are in pari materia, they must be construed together:

"3275. When any clerk receives payment of a judgment, he must collect the costs and commissions of the sheriff, if execution has issued on such judgment."

"3693. The law of fees and costs must be held to be penal, and no fee must be demanded or received except in cases expressly authorized by law."

"3697. Sheriffs and coroners are not entitled to full commissions until after actual levy of execution on property of the defendant, and the money made or paid to the plaintiff in execution, and then only on the amount actually collected or paid.

"3698. When the sheriff or coroner has levied execution, and before sale it is stayed by order of the plaintiff, the officer so levying must receive only half commissions."

"3722. Sheriffs are entitled to receive the following fees for the following services: Collecting money under execution: For the first hundred

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