Loeb & Loeb v. Waller

| Ala. | Nov 15, 1895

HEAD, J.

“The evidence required to impeach or falsify a return must be sufficient to rebut the very strong presumption which the law allows in favor of the truth of the statement of its officer, and must therefore be very clear and decisive.” — 22 Am. & Eng. Encyc of Law,. 196, and many authorities cited in note. Some cases require (though we. do not commit ourselves to that proposition) that the return being the statement of a sworn officer, who is disinterested, the testimony of more than one witness is required to prove it false. — lb. 197, note 2. And this in a direct proceeding, like the present, to quash the return.

The testimony leaves us entirely satisfied that the sheriff made to the plaintiffs in the writ the only delivery of the plastered wall which he could, or was required by law to make ; and not only this, but that the plaintiffs accepted the delivery, and took charge of, and began the removal of the wall. The fact that the defendants in the writ, afterwards interposed, and by force, prevented the plaintiffs from completing the removal, does not show that the sheriff falsely certified when he returned that he had delivered the wall to the plaintiffs. They, the plaintiffs, had their remedy against the wrong-doers who prevented the removal. The sheriff was right when he said to the plaintiffs that lie was not required to deliver to them a lot of lumber, laths and plaster, which he would have been necessarily compelled to do, had he torn down the wall, as the plaintiffs seem to think was his duty to do.

The judgment of the circuit court was right, and is affirmed.