Parks v. Bryant

• Decision Date: 05 February 1902
• Citation: 132 Ala. 224,31 So. 593
• Parties: PARKS ET AL. v. BRYANT ET AL.
• Court: Alabama Supreme Court

31 So. 593

132 Ala. 224

PARKS ET AL. v. BRYANT ET AL.

Supreme Court of Alabama

February 5, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Summary motion by C. F. Bryant and others against W. H. Parks register, and his surety. Judgment against defendants, and they appeal. Reversed.

Marks &amp Sayre, for appellants.

W. W Pearson, for appellees.

SHARPE J.

This appeal is from a judgment of the city court, sitting in equity, rendered on a motion made against the register in chancery, who is ex officio register in the chancery side of the city court, and the surety on his official bond, for an alleged default on the part of the register, in failing to pay over proceeds of property sold by decrees of that court and received by the present register in part from his predecessor in office, and in part pursuant to a sale made by himself. Authority for enforcing the obligation of a register's bond by a summary motion is found alone in chapter 106 of the Code. Section 3767, therein, designates the forum for such suits by providing that "when the motion is against a sheriff, coroner, clerk, or other officer of court, or their sureties, the motion must be made in the circuit court of the county in which such officer was acting officially at the time of the default, or in the court to which the process was returnable, when the default consists in the failure to execute or return process, or to pay over money collected thereon; and in all other cases not specially provided for, the motion must be made in the circuit court of the county in which the person moved against resides; or if he has no permanent residence, then in any county where he may be found." This section does not purport to confer jurisdiction on a court of chancery where the default has no connection with process returnable to that court. The term "process" is used in this section in its ordinary legal sense, which renders it synonymous with "writs," as in the constitution, where it is directed, "All process shall be styled The State of Alabama," and in section 3739 of the Code, which requires the sheriff to execute all "process and orders of the courts of record of this state." Decrees of sale are not process, and moneys received by the register merely as the custodian of sale proceeds belonging in court are not moneys collected under process, within the meaning of section 3767. This appears even more plainly from the fact that...