Board v. HelmBoard v. Helm
- Reporters:
- , ,
- Before:
- Duvall
delivered the opinion of the court:
By the Civil Code, (sec. 709,) if аn officer who levies an execution upon personal property doubts whether it is subject tо the execution, he may notify the plaintiff that an indemnifying bond is required, and thereupon such bond maybe given by or for the plaintiff; and when given, the officer shall proceed to subject the property to the execution. But if the required bond is not given, the officer may refuse to levy the execution, or, if it hаs been levied, and the bond is not gNen in a reasonable time after it is required by the officer, he may restore the property to the person from whose possession it was taken, and the levy shall stаnd discharged. (Sec. 710.)
These provisions were intended to afford ministerial officers the most ample prоtection against the consequences of illegal seizures and sales of property under еxecution. The right of the officer to demand the indemnity here provided for is not, as has been suggested in argument, confined to any particular class of cases; but, by the comprehensive and general terms of the statute, such right extends to every case in which the officer doubts whether the proрerty levied on is subject to the execution. The existence of this doubt is thus made the sole conditiоn upon which his right to demand the bond of indemnity depends. But in this, as in all other matters of official duty, the officеr must act in good faith, and we would not be understood as deciding that the law would tolerate the refusаl of the sheriff to levy upon, or to sell property under an execution, upon the mere suggestiоn of unreasonable doubts or scruples, set up as a pretext for delaying the execution of the process, or for imposing an unnecessary and unreasonable *502burthen upon the plaintiff. But whеnever the officer, in good faith, and in the exercise of his official discretion, doubts whether the prоperty is subject to levy or sale, the law gives him the right to demand the bond of indemnity, whereby the risk of the consequences is transferred from himself to the plaintiff in the execution.
That the demand of a bond of indemnity in this case was not unreasonable, is very clearly shown by the record. The sheriff states in his return that he lеvied the execution upon the two crops of tobacco, with the understanding that he was to be indemnified by the plaintiff before selling; that the judgment on wffiich the execution issued was obtained without serviсe of process upon the party on whose property the levy was made, but that the process had been served on another party of the same name, and he was, therefore, аdvised that there was no valid judgment against the former, and that the execution gave him no authority to levy, or to sell the property levied on; and the plaintiff having declined to indemnify, he did not sell, and would nоt, until satisfied he could do so safely.
Upon these facts, which, for the purposes of this case, must bе assumed to be true, the sheriff had no right to subject the property levied on to sale, but would, if he had done so, have rendered himself liable in damages to the owner of the property. The effect of his statement is, that in the action in which the judgment was rendered process had not been served on the party whose property had been seized, but on another person of the same namе. If this be true, then, in point of fact, there was no judgment against the former, and he was therefore a strаnger to both the judgment and the execution which issued on it, and the seizure and sale of his property undеr that execution would have, been a trespass for which he might have maintained his action against the sheriff. Under such circumstances, was not the sheriff justified in doubting whether the property was subject to the еxecution, and in demanding of the plaintiff a bond of indemnity before he would proceed to sell? Why the plaintiff refused to give the required bond according to the understanding referred to by the sheriff in his return, does not appear.
*503The court below, therefore, erred in ordering the sheriff to proceed to make sale of the property levied on. If, in any case, a proceeding by rule against a sheriff, to compel him to execute final process in a particular mode, be proper, it certainly was not authorized by the facts of this case. If the return of the officer is untrue, the lаw affords the plaintiff in the execution a plain and ample remedy, by appropriate аction against him and his sureties.
It is proper to remark that there is nothing in the opinion of this court in the case of Helm vs. Mattingly, which precluded the sheriff from showing the facts stated in his return. All that was said upon that pоint, in the opinion referred to, was, that there was nothing in the record then before the court from whiсh it could be assumed that the two judgments were rendered against two different persons of the same name.
The judgment is therefore reversed, and the cause remanded with directions to discharge the rule.