54 Ala. 161 | Ala. | 1875
This was a summary proceeding against the appellants, a sheriff and his sureties, under section 3033 of the Revised Code, to recover judgment for the default of the sheriff in not making the, money on an execution, which could have been made by due diligence. An
Tbe charge assumes, as fully proved, all that tbe evidence tended to prove — that tbe defendants in execution bad an interest in lands, tbe subject of levy and sale, and that tbe sheriff was fully informed of such interest, or by tbe use of due diligence could have obtained such information in time to have levied tbe execution, and made tbe money. It is a manifest invasion of tbe province of tbe jury, and is of consequence erroneous.—Jones v. Fort, 36 Ala. 449 ; McDougald v. Rutherford, 30 Ala. 253. It is also an invasion of the province of the jury, in not referring to them tbe credibility of tbe testimony, which was entirely oral.—1 Brick. Dig. § 98, 342. Tbe plaintiff was not entitled to a judgment without affirmative proof, satisfactory to tbe jury, that by due diligence tbe money could have been made on the execution by tbe sheriff.—Adams v. White, 2 Ala. 37. Whether such proof bad been made, and its sufficiency, tbe jury ought to have determined. Tbe court, by tbe charge, determines it for them, and limits their finding to tbe value of the lands. Charges less objectionable than this have been often repudiated by this court, and tbe duty of a judge in charging a jury not to assume as proved any fact which tbe evidence only tends to prove, and to leave tbe jury free to pass on tbe credibility of tbe evidence, enforced in strong terms.
The charge is also erroneous in narrowing tbe inquiry of tbe jury to tbe true value of tbe lands, and instructing them not to consider tbe market value, or what tliey^ would have brought at execution sale. Á sheriff, in making a levy, is bound to bear in mind, tbe fact known to all, that property, real or personal, at forced sales, under legal process, but sel
In Johnson v. Cunningham, 1 Ala. 249, which was a proceeding similar to this, a suggestion against a sheriff, that he could, by the use of due diligence, have made the money on an execution, it is said it is permissible to show by oral evidence that the defendant in execution was in possession of the land, but not that he was its reputed, owner: It is too plain for argument that the evidence that the defendants in execution were the reputed owners of an interest in the lands, was not admissible. It would have been more appropriate to have objected to its introduction when offered, than silently have permitted it introduced, and then requested charges declaring its insufficiency. It is not necessary to consider the other matters presented by the assignment of errors; they will not probably arise on another trial.
The judgment authorized by the statute, under which the plaintiff is proceeding, is for the amount of the execution, interest, and ten per centum damages. It may be well for the parties to consider whether the proceeding is maintainable, unless the evidence shows the whole amount of the execution could, by due diligence, have been collected, or whether any other judgment than that prescribed can be rendered. ,
The judgment is reversed and the cause remanded.