Legal Opinion

McCall v. McRae

Supreme Court of Alabama

Decided June 15, 1846PublishedCited by 3 opinions

Writ of eri;or to the Circuit Court of Barbour. Motion by the plaintiff in error, against the defendant in error, as sheriff, for failing to make the money on. an exe* cution, which by proper diligence he could have made.

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Writ of eri;or to the Circuit Court of Barbour. Motion by the plaintiff in error, against the defendant in error, as sheriff, for failing to make the money on. an exe* cution, which by proper diligence he could have made. The execution is. alledged t.o have come to the hands of the she* riff on the 27th May, 1841, and notice was given that the motion would be made on the third Monday of September, 1841. The defendant pleaded not guilty, and at the spring term, 1846, on payment of costs, was permitted by the court to plead puis darrien continuance, that the judgment against the defendani was…

1Opinion of the CourtOrmond, J.

The rule upon this subject, is laid down in Godbold v. The P. & M. Bank, 4 Ala. 520, that although the execution is irregular, so that it might have been quashed on motion, the sheriff cannot refuse to execute it, or excuse himself for the omission, by proving such to be the fact; hut where the judgment is so utterly void, as to afford no warrant for the officer in executing it, he may successfully defend himself, by proving that there is no such judgment, or that it is void.

This case falls fully within the principle there laid down. It appears that the judgment on which the execution had…

2Cases cited2 opinions

  1. Chandler v. CrawfordSupreme Court of Alabama · 1845
  2. Godbold v. Planters' & Merchants' Bank of MobileSupreme Court of Alabama · 1842

3Cited by3 opinions

  1. Wright v. EvansSupreme Court of Alabama · 1875
  2. Cartwright v. WestSupreme Court of Alabama · 1911
  3. Ewing v. PeckSupreme Court of Alabama · 1855

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