Cotton v. Atkinson

53 Ark. 98 | Ark. | 1890

Per Curiam.

1. when i;ability of sheriff failure t© sell attachedproperty It is difficult to ascertain from the com- . plaint what the pleader intended to allege as a breach of 0 ■bond. If it be that the sheriff failed to sell the property in obedience to the order of condemnation, it is no breach. The sheriff would not be in default in failing to sell the condemned property until a legal demand has been made upon him for the execution of the order of condemnation— s by delivery to him of a special execution for the sale of he property, or a copy of the order of condemnation. He ■nay make a valid sale in pursuance of the order without either, but he is entitled to the writ or a copy of the order for his guidance and unless he waives it, there is no dereliction of duty on his part in failing to make the sale.

2. Sheriff’s term expiring— Special execution —To whom directed. But the special execution should run to the sheriff in office at the time of its issue. It is only where an officer’s duties under a writ remain incomplete at the expiration of his term,, that he has power to execute it after its expiration. Mansf. Dig., sec. 3081. The special' execution was improperly issued to Falconer after his term expired. He was not authorized to execute it and his failure to do so was no breach of his bond. Johnson v. Foran, 58 Md., 148; Kent v. Roberts, 2 Story, 602-3. For the same reason his endorsement upon it cannot be considered as an official return.

3. Failure of sheriff to keep property attached — Presumption. But it is alleged he failed to safely keep the attached property, by which it may be presumed that the pleader intended to charge that he released it. The complaint further shows that the value of the property released exceeded the amount of the judgment; but it does not allege that plaintiff lost his debt by reason of the release, and the question is presented whether this sufficiently charges any damage. It is the duty of the sheriff to hold attached property subject to order of the court, and any dereliction in this behalf is a violation of his duty. When a judgment plaintiff proves a breach of this duty, the law presumes that he has been damaged in the full amount of his judgment, if it does not exceed the value of the property released, and it devolves upon the defendant to prove circumstances of mitigation to reduce, the amount. This is a rule of public policy which is generally approved. Sedg., Damages, 509, 513; Faulkner v. Bartley, 6 Ark., 150; Hootman v. Shriner, 15 Ohio St., 43.

A complaint was held good in the case of Adams v. State, use, etc., 6 Ark., 497, which alleged a failure by the sheri to sell property levied upon, although it was not alleged tha the plaintiff thereby lost his debt.

When the complaint is interpreted by the rules of our code pleading, as announced in Bush v. Cella, 52 Ark., 378, we think a breach of the bond is sufficiently charged.

The judgment will be reversed and the cause remanded with instructions to overrule the demurrer to the complaint.