48 So. 667 | Ala. | 1909
The suit in this case was brought by the appellant against the appellees, as principal and sureties on the bond made by said Burgin ás sheriff of Jefferson county. The breaches of the bond alleged relate to a suit in detinue for the recovery of two mules, commenced September 27, 1906. The property sued for was talren into the custody of the sheriff, and on October 3, 1906, delivered to the defendant on the execution of a forthcoming bond. On December 13, 1906, judgment was rendered for the plaintiff. It is assigned as a breach of the condition of the bond of said sheriff that “he failed to accept the property from the said James Barbour, the defendant in said detinue suit, the same having been tendered to Rush Randall, deputy sheriff, and acting for him, within 30 days from the rendition of the judgment against the defendant as aforesaid, and restore the property to the plaintiff, as it was his duty to do.”
The first assignment insisted on is to the overruling' of said demurrer, and it is contended that said plea is not a sufficient answer to said count. The cases relied upon for this contention are Bruister v. Gavin et al., 127 Ala. 317, 28 South. 410, and Ryan v. Couch, 66 Ala. 244. In those cases it Avas held that a sheriff Avho had levied a writ of attachment, and to whom a venditione exponas had been issued, Avas the proper party to make the sale, even though his term of office had expired; and the same principle Avas applied where the sheriff had, during his term of office, levied an execution. ' The reason upon which these.decisions rest is that “by the levy of the Avrit upon chattels the officer acquires a special property therein” (Bruister Case, 127 Ala. 319, 28 South. 410), or that “he acquired a special property in the personal property levied on under the writ” (Ryan Case, 66 Ala. 249). That principle has no application to the present case, in Avhich the property had been turned over to the defendant in the case, on the execution of a bond according to section 3778, Code of .1907, under which it was his duty, if he was cast in the suit, to “within 30 days deliver the property to the plaintiff” and pay his costs, etc.; and, if he failed to do so, the only duty of the sheriff was to “upon the bond make return of the fact of such failure.” — Section 3783, Code of 1.907. This bond was simply one of the papers which it was the duty of the retiring sheriff to turn over to his successor. — Section 1540, Code of 1907. When that was done, his responsibility ceased, and he had no right to receive the property. There was no error in overruling the demur-, rer to the second plea.
For the same reason, that part of the oral charge excepted to was erroneous.
The judgment of the court is reversed, and the cause remanded.