GEORGE N. MOODY ET AL., PLAINTIFFS IN ERROR,
v.
R. HOE & CO., DEFENDANTS IN ERROR
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George N. Moody challenged an execution issued on a forfeited claimant's bond, arguing the clerk lacked authority to issue it in the manner done. The Florida Supreme Court held that the clerk, a ministerial officer, violated statutory requirements by issuing execution against parties not bound by the bond and for amounts beyond the debt itself.
The execution was issued illegally and void. The clerk, as a ministerial officer, exceeded statutory authority by: (1) issuing execution in the name of one plaintiff only when the bond judgment was joint; (2) joining T. A. Darby, who was not an obligor on the bond; and (3) including costs beyond the debt amount, which the sureties never undertook to pay.
“In issuing an execution upon a forfeited bond as provided by the statute, the clerk is merely a ministerial officer without any judicial powers. He must follow its provisions or his acts are void.”
Establishes the clerk's limited role and that violations of statutory procedure render the execution void.
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Join FLexlaw to unlock all legal intelligenceR. Hoe & Co. obtained a judgment against T. A. Darby and levied on seventeen mules. Moody claimed the property under statute, posting a bond with sure…
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The Chief-Justice delivered the opinion of the court: Motion to set aside execution in Circuit Court of Levy county by plaintiff in error for alleged illegality.
The defendants in error recovered a judgment in-the Circuit Court of Levy county against one T. A. Darby for .$342.55 and $6.81 cents costs, which was levied on seventeen head of mules. George N. Moody, one of the plaintiffs in error, made a claim to the property under section 22, McC.’s Dig., p. 524. Burkhalter & Co., Strauss, Pritz & Co., and Malin, Fowler & Co., also recovered judgments in the Circuit Court of said county against the firm of Chafer & Darby. Moody’s affidavit, claiming the property, included all these executions, and one bond was made by him to all the plaintiffs in the execution jointly. On a trial of the right of property, which followed, the jury found in favor of the claimant as to the last three, and adversely as to the execution of R. Hoe & Co. The property levied on by virtue of the Hoe & Co. execution, not being delivered to the sheriff on demand therefor, the clerk issued an execution on said bond against Darby, the original defendant in the suit of Hoe & Co., Moody, the claimant, and his sureties, Epperson and Carter, for the sum of $355.99 and $58.10 costs. The execution was issued in the name of Hoe & Co., alone. Moody moved the court to set aside the execution for illegality under the provisions of sec. 19, p. 524, McC.’s Dig. The court overruled the motion and defendant sued out a writ of error. The record shows sufficient legal reasons why the motion should have been granted. In issuing an execution upon a forfeited bond as provided by the statute, the clerk is merely a ministerial officer without any judicial powers. He must follow its provisions or his acts are void. Blount vs. Gallaher, present term.
The statute says that such bond shall have the “ force and effect of a judgment.” When a judgment is given in favor of parties jointly, the clerk has no authority to issue an execution against the defendants in favor of one of the plaintiffs only. Lunsford et al. vs. Richardson & O’Neal, 5 Ala., 618.
The statute only authorizes the issue of the execution against the obligors in the bond. T. A. Darby is not one of the obligors therein, was not a party to the proceeding for the trial of the right of property, and the clerk had no authority to join him with the obligors.
These discrepancies are so patent that we cannot say from an inspection of the record that the bond of Moody and his sureties is the bond on which the clerk issued the execution. Again the statute provides that the “ bond shall have the force and effect of a judgment, and the clerk of the court in which such bond is filed may issue execution against the obligors in said bond for the amount of the debt.” The execution is not only for the debt, but is for $58.10 costs in the proceeding for the trial of the right of property.
The sureties on Moody’s bond, Epperson and Carter, never originally undertook to be responsible for costs but only for the return of the property and such damages as the jury might find reasonable and right if it should appear that the claim was interposed for delay, and if they had so undertaken there is no authority in sec. 28, McC’s. Dig., p. 526, to issue a summary execution against them for anything except “ the amount of the debt.”
Judgment reversed with instructions to set aside the execution.