John H. Rhodes, Plaintiff in Error vs. W. P. Moseley, Defendant in Error, 6 Fla. 12

BALTZELL, C. J., delivered the opinion of the Court. The Sheriff of Leon County made an affidavit, alleging that a writ of fi. fa., issued by the Clerk of the Circuit Court to the Sheriff in favor of Wm. P. Moseley vs. John H. Rhodes—that the original, of which a copy was in his possession, has been lost or mislaid, a copy of which he attaches to his affidavit. At the October Term, 1853, the following entry was made: Wm. P. Moseley, Plaintiff, vs. John H.

Rhodes, Defendant ~ T to es- “ It appearing to the Court from the petition and accompanying papers filed by the Sheriff of Leon County in the case, that a pluries writ of Execution was issued from the Clerk’s Office, and that the said writ was lost or mislaid, &c. “ It is therefore ordered, that the said copy be established in lieu, of the original and be valid for all purposes for which the original writ of execution would have been.” It has not been denied that the Court has power to establish lost papers, but the action complained of in this instance is that no notice was given.

Another irregularity is evident, that the Sheriff has no power to originate motions or present questions in the name of the parties, for the action of the Court. The parties themselves are alone competent to this duty. The petition should be theirs and in the form of an application, with notice to the adverse party. We are satisfied that the irregularity escaped the attention of the learned Judge who presides in that Court. The order will be set aside, with leave to the parties to renew their motion in a proper manner.