Albritton v. Williams.
¿/iututory Trial of the Right of Property.
[Decided June 28, 1902.]
1. Claim suit; not necessary that affidavit should he signed by claimant. — The statute does not require the affidavit made as the basis for the interposition of a claim to property levied on, to be signed by the party making it (Code, § 4141), and when it appeal’s that the claimant made the affidavit, and the fact of his swearing to it is properly certified by the officer before whom it is made, such affidavit is sufficient, although not subscribed by the party making it.
2. Execution issuea by justice of the peace; not necessary that itemized bill of costs be attached. — The statute requiring that a bill of costs should be attached to or made a part of executions issued from the circuit court, (Code, § 1883), has no application to executions issued from a justice of the peace court, and such an execution is not rendered invalid by reason of the fact that no itemized bill of costs it attached to it or made a part of it.
Appbad from tire Circuit. Court of Wilcox.
Tried before the Hon. John Moore.
The appellant, E. W. Albritton, brought an action in the justice, of the peace court against Henry Ellis and recovered a judgment against said Ellis. Upon this judgment an execution was issued and levied upon two mules and a horse, the property of said Ellis. Thereupon the appellee, J. C. Williams, interposed a claim to the property so levied upon by making affidavit and giving claim bond. The ’affidavit, however, was not signed by him or any one else, but the officer before whom it ivas made certified that it ivas made by said J. C. Williams. Issue was made up for the trial of the right of property so levied upon, and the *648trial' was had before the justice. of the peace issuing the execution. In this trial a judgment Avas rendered in favor of the plaintiff, and from this judgment the claimant appealed to- the circuit court. In the cii*-cuit court issue was again joined between the plaintiff and the claimant. In that court, the plaintiff moved to quash the affidavit upon which the claim suit was based, because said affidavit was not signed by the claimant or Ms agent or any one else. The affidavit was introduced in evidence and showed that it was not signed by the claimant, but that the. justice of the peace before whom it was made certified that it was executed and sworn to by the claimant. The motion was overruled, and to this ruling the plaintiff duly excepted. The claimant moved the court to be allowed to amend the affidavit by then signing it. The court granted this motion, and .to- this ruling the plaintiff duly excepted. The claimant then moved the court to quash the execution which was levied upon the property involved in the controversy, up-on the ground that no- itemized bill of costs was attached to said execution or made a part thereof. The execution, which was introduced in evidence, showed that there was attached to it or made a part of it no itemized bill of costs in the''justice of the peace court. The court granted this motion to- quash the execution and dismissed the plaintiff’s suit and rendered judgment- in favor of the claimant. To- each of these rulings the plaintiff separately excepted. The plaintiff appeals, and assigns as oa-ror the, several rulings of the trial court to which exceptions were reserved.
Mt.ller & Milijcii, for appellant.
— The itemizing of cost bills on executions is not required in justice of the peace courts. Code:, § 1883, does not apply to justice of the peace executions. It says the clerk must state the1 cost bill on the execution; a justice of -the peace has no clerk. This section, 1883, is not under the head of justice of peace executions. For justice of the peace executions, see Code, § 1932, Art. 1. Code, § 2673 does not ap-p-ly. It is limited to- parties, trials, etc., and does *649not make tlie law of executions in tbe circuit tbe law of executions in justice of üie peace courts.- — -76 Ala. 403; 105 Ala 305; 103 Ala. 260; 60 Ala. 394; 74 Ala. 328.
Bonner & Bonnes, anti Howard & J ones,, contra.
Tlie execution issued by tbe justice of tbe peace was void because! it contained no' itemized bill of costs. Code, § 1883; Maxicell v. Pounds, 116 Ala. 551, and tbe court, therefore, properly quashed tbe execution and dismissed the suit. — Jackson v. Bain, 74 Ala. 328; (Jooper c. Jacobs, 82 Ala. 411; Ga. Pac. R. R. Co. v. Blanton, 84 Ala. 154; Beymour v. Farquhar, 93 Ala. 292; Bill v. MeBrydice, 125 Ala. 542; Fry v. Mobile Bar. Bank, 72 Ala. 473.
HARALSON, J.
— 1. Tbe plaintiff moved tbe court to quasb the affidavit of tbe claimant because it was not signed by bim or bis agent, or by any one. Tbe court overruled tlie motion, and at tlie instance of claimant, be was allowed to amend bis affidavit by signing tin--* same. Tbe affidavit needed no amendment: it. was good without claimant’s signature, since it bad tbe. jurat of tlie justice of tbe peace, before whom it was made, that it was sworn to before bim on tlie date it bears date. This clearly appears from tlie affidavit itself, introduced in evidence. The statute (Code, § 4141), docs not in terms require tbe affidavit to be signed by tbe party making it; and when it clearly appears as here, that tbe claimant made tbe affidavit, and the fact of bis swearing to- it is also properly certified by tbe officer before whom it was made, it is sufficient, although not subscribed by tbe party making it.—Watts v. Womack, 44 Ala. 605; Hyde v. Adams, 80 Ala. 113; 1 Cyclo. Law and Pro., 26.
2. To tbe execution that issued from tbe justice of tbe peace court, on tbe judgment therein rendered in favor of plaintiff, against tbe defendant in execution, no itemized bill of costs was attached ait, its foot or on any part of it, as is required in cases where executions issue from tlie circuit court under section 1883 of tbe Code, and on this ground, tlie claimant, in tbe circuit court, moved the court to quasb tbe execu*650tion. That section does require clerks (of tbe circuit court) to state in intelligible words and figures the several items conpposing the bill of costs, and provides that without such copy of the bill of costs the execution is illegal and shall not be levied. In Maxwell v. Pounds, 116 Ala. 551, the court, in construing that section, held that an execution which issued from a circuit court without a copy of the bill of costs, as by the section required, was void. It is well settled that mere irregularities or defects in the original proceedings are not available to claimant, but when void on their face from any cause, tire claimant may avail himself of it. Carter v. O’Bryan, 106 Ala. 314; Schamagel v. Whitehurst, 103 Ala. 263.
3. The contention of the plaintiff is that the requirements of said section 1883, have no application to executions issued from a justice of tire peace court, and apply only to such as issue from circuit courts; and the ci aimanfis contention is that it applies alike to such process issuing from either of these courts. This contention of the claimant is sought to be based, among other grounds, on section 2673 of the Code, which provides, that “As to' parties, trial, competency of witnesses, admissibility of evidence, regulation of suits, and the. time within which suits may be brought, unless otherwise provided, suits before justices of the peace shall be governed by the same rules and provisions, so far as they are applicable, as suits in the circuit court.” But, manifestly, this section does not apply to the issuance, return and levy of executions from justices’ courts. The rules of Hie circuit court, as to- parties, trial, competency of witnesses, admissibility of evidence, regulation of suits, and the time in which they may be brought therein, have no' application to the issuance of executions from justice’s courts. Issuance of execution from these courts does not fall within either of the specified categories.— Chaney v. Burford Lumber Co., 132 Ala. 315; Mitchell v. Corbin, 91 Ala. 599-601.
*651'Without .said section 1883, it could not be well contended that executions issuing from circuit courts without an itemized bill of costs at their foot or in some parts of themi, would he void. Their illegality when thus issued arises alone from the positive terms of the statute. This illegality, except inferentially, cannot be applied to executions from justices’ courts. A full answer to the contention is found in the fact that the statute has made the. requirement as to' one class of executions and not to the other; and having reference to the writs themselves, their issuance, periods of return, levy, sales thereundea, etc., it is not difficult to understand why the rule should, in the legislative mind, he proper to he made in the one case and not in the other.—Griffin v. Dauphin, in MS.
The court, erred in quashing the execution aud dismissing the suit.
Eeversed and remanded.