Tippett v. Hardy
| Decision Date | 30 June 1921 |
| Docket Number | 5 Div. 799 |
| Citation | 89 So. 493,206 Ala. 309 |
| Parties | TIPPETT v. HARDY, Sheriff, et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coosa County; W.L. Longshore, Judge.
Motion by T.J. Tippett against J.R. Hardy, as sheriff, and his official bond, for summary judgment for failure to levy a garnishment. From a judgment sustaining demurrers to the information, complainant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed rendered, and remanded.
J.W Batson, of Rockford, and S.J. Darby, of Alexander City, for appellant.
Felix L. Smith & Sons and Henry A. Teel, all of Rockford, for appellees.
The appellant filed his motion for a summary judgment against the appellee, as sheriff of Coosa county, and the surety on his official bond, for the damages authorized on such a motion by section 5910 of the Code, for the sheriff's failure to execute process in garnishment, which by due diligence could have been executed. The default complained of occurred after October 4, 1916, and the motion was filed on September 17 1920.
The trial judge sustained the eleventh ground of the defendant's demurrer to the motion viz. that it appears upon its face to have been barred by the statute of limitations of one year. The limitation in the mind of the trial court was subdivision (3) of section 4840 of the Code:
"Actions qui tam, or for a penalty given by statute to the party aggrieved, unless the statute imposing it prescribes a different limitation"--to be brought within one year.
We think the application of this limitation to this motion was clearly erroneous. Section 4834 of the Code prescribes a limitation of ten years for:
"(3) Motions and other actions against sheriffs, *** constables, and other public officers, for nonfeasance, misfeasance, or malfeasance in office."
And section 4835 prescribes a limitation of six years for:
"(7) Motions and other actions against the sureties of any sheriff, coroner, constable, or any public officer. ***"
These provisions, ex vi terminorum, include motions like the one before us, which are not qui tam actions, or actions for a penalty within the meaning of subdivision (3) of section 4840. It is of no significance that different limitations are prescribed as against these motions, in favor of the officer and of his sureties.
Section 5900 of the Code, in declaring that judgment on these motions "must be rendered...
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Nathan Rodgers Const. & Realty Corp. v. City of Saraland, Ala.
...facially broad language only one Alabama case has been found that discusses the statute since its enactment in 1852. Tippet v. Hardy, 206 Ala. 309, 89 So. 483 (1921). Therefore, we approach with caution whether the 10-year statute would apply to this action if it were brought in The distric......