No. 9559 | Ind. | Nov 15, 1882
Appellant sued appellee as sheriff of Marion county for failing to levy an execution. The cause was tried before the court. At the request of the plaintiff the . court made a special finding, and stated its conclusions of law, in favor of the plaintiff, for nominal damages, and rendered judgment accordingly. The plaintiff excepted to the conclusions of law, and appealed to the general term of the court, assigning as error the overruling of his exceptions to the eonelusions of law. The court at general term affirmed the decision of the court at special term, and the plaintiff appealed to this court, assigning as error the affirmance of the judgment in general term.
The special finding of facts is substantially as follows: That the defendant at the time was sheriff of Marion county, Indiana; that the plaintiff recovered a judgment on the 15th day of January, 1878, in the superior court of said county, against one Thomas Schooley for the sum of $1,078.92, and costs; that he caused execution to be issued on the same on the 23d day of January, 1878, which came to the hands of the defendant on the 24th day of January, 1878; that the defendant, at the time of receiving said execution in favor of the plaintiff, already had in his hands, as such sheriff, other executions against said Thomas Schooley in favor of other parties, for the various sums therein named, aggregating the sum of $6,163.78; that during the lifetime of said executions, including the plaintiff’s, said Schooley was the owner of personal property, in said county, of the value of $1,895, which fact
As an objection to these conclusions of law, it is insisted by-appellant’s- counsel that the oldest execution in favor of Ridenour for $399.35 was all paid off but $10, and that all the other senior executions, to wit, Scott v. Schooley, Holmes v. Schooley, Dawson v. Schooley, and First National Bank v. Schooley, were each dormant, held by the sheriff under orders, from the plaintiffs not to levy,, and, as to the plaintiff, they were not senior.
There is no fact stated in the court’s special findings as to-any part of the Ridenour judgment having been paid. Nor is there anything therein stated as a fact in the case, showing that, either of the senior execution plaintiffs had directed the sheriff not to levy his execution. But it is claimed by appellant that, the return of the sheriff endorsed on the Ridenour execution, shows payments made thereon; that the return endorsed upon the Scott execution shows that the sheriff, “ having held this writ by order of the assignee of the judgment herein, until the time for return having expired, the same is now returned to be renewed; ” that the return on the Holmes execution, shows that “this writ is now returned by order of the plaintiff’s attorneys. See order on back. Endorsed, ' Return-this. Dye & Harris.’ ”
The return on the Dawson execution shows that “the same is now returned to be renewed, the same having been held by order of the assignee.”
The return on the First National Bank execution shows that “ the time allowed by law for the return of this writ having expired, the same is now returned to be renewed, the same having been held by order of the plaintiff.”
These respective executions were for the following amounts: The one in favor of Scott, $2,208.87 ; Holmes, $388.15; Dawson, $902.32; Bank, $2,165.09; Ridenour, $399.35, with interest and costs added to each.
If these returns were considered proper parts of the state
But it is claimed that the facts stated in these returns are conclusive — that they are to be considered as true, and have the same effect as if found to be time by the court. This court has held otherwise, and we think correctly so.
In the case of Lindley v. Kelley, 42 Ind. 294" court="Ind." date_filed="1873-05-15" href="https://app.midpage.ai/document/lindley-v-kelley-7039521?utm_source=webapp" opinion_id="7039521">42 Ind. 294, it is said: . “ The return of an officer on an execution can only be evidence of the facts as between the parties, when the facts stated are official acts done in the ordinary and usual course of proceedings. Matters of opinion or excuse for failure to perform a duty can not be made evidence by stating them in the return, but must be proved on trial.”
In the case of Splahn v. Gillespie, 48 Ind. 397" court="Ind." date_filed="1874-11-15" href="https://app.midpage.ai/document/splahn-v-gillespie-7040403?utm_source=webapp" opinion_id="7040403">48 Ind. 397, pp. 407-8, it was held that “a return is conclusive against the officer wffio makes it, and is prima facie evidence in his favor. * * The return of an officer on mesne or final process can be evidence of the facts stated therein, only when the facts recited are official acts done in the ordinary and usual course of proceedings. Matters of opinion or excuse for failure to perform a duty can not be made evidence by stating them in the return, but must be proved on the trial.” See authorities cited in support thereof. If itwere otherwise, and the return held con-
An exception to the conclusions of law only brings in review the rulings of the court upon the findings of the facts as having been proved, and not upon mere copies, statements or findings of the evidence. The contents of the sheriff’s statements in his returns can not be considered as facts found by the court, when the court has not found anything in relation to them.
We do not think that the contents of these returns constitute any part of the inferential facts found by the court, and that they can not be considered under an exception to the conclusions of law. Objections to the findings must be taken advantage of otherwise than by exceptions to the conclusions of law.
If the prior executions were not paid nor dormant, the fact that they held a prior lien upon Schooley’s property is not controverted ; and it is clear that plaintiff did not sustain more than nominal damages by the non-levy and sale under his execution; and there was no error in the affirmance of the judgment.
The judgment of the general term ought to be affirmed.
Per, Curiam. — It is therefore ordered, upon the foregoing opinion that the judgment of' the general term of the court below be and it is in all things affirmed, with costs. .