Mathis v. Carpenter

95 Ala. 156 | Ala. | 1891

COLEMAN, J.

Appellant as plaintiff moved for a summary judgment against the defendant Carpenter, as sheriff, and liis sureties, for failing to levy an attachment. The aA^erments of the motion are, that the writ of attachment Avas placed in the hands of the sheriff, property pointed out to him as belonging to the defendant in attachment, and .that the sheriff Avas duly indemnified to make the levy. The defendants’ pleas were three in number : 1st, that the writ was not received by him, or any one authorized to receive it; 2d, that defendant had no property subject to levy under the attachment; and, 3d, the same could not have been executed by the exercise of due diligence.

The proof is ample to show that the sheriff, Carpenter, was liable for the acts of C. F. Porter as his deputy. The testimony of the clerk of the court showed that Porter acted as the deputy-sheriff in the presence of the sheriff; that he was in the habit of receiving all kinds of process; that in fact be receipted for executions in tbe name of tbe sheriff, by him as deputy, collected money on executions, made due return of tbe collections in tbe name of tbe sheriff, and was generally understood to be tbe deputy-sheriff. To tbe same effect is tbe testimony of certain attorneys, who practiced in tbe court; and in regard to tbe particular writ of attachment, upon inquiry being made of Caldwell, whom tbe sheriff acknowledges to have been bis regular deputy-sheriff, was referred by him to'Porter as tbe officer who bad tbe writ for execution. There is other evidence, also, sufficient to satisfactorily show that Porter was recognized by tbe sheriff as bis deputy.

Tbe pleas are framed jointly for all tbe defendants, and there is no plea which justified tbe exclusion of either bond executed by tbe sheriff, although some of tbe defendants were sureties upon one bond, who were not sureties upon tbe other.

Section 3951 of tbe Penal Code imposes a penalty upon any officer required by law to file an oath of office, who-enters upon tbe duties of bis office without first taking and filing such oath in tbe proper office. Tbe fact that Porter filed bis oath of office with tbe clerk of tbe court, instead of tbe probate office, did not relieve tbe sheriff of bis liability for tbe acts of Porter as bis deputy, if tbe evidence otherwise satisfactorily showed that be, Porter, represented himself as deputy-sheriff, and acted as’such with tbe knowledge and consent and approbation of tbe sheriff; and if tbe evidence is credible, there can be but little question of tbe existence of these facts. — Joseph v. Cawthorn, 74 Ala. 414.

That property in tbe possession of tbe defendant, apparently subject to levy, was pointed out, and an indemnifying bond executed to the sheriff, is fully proven. Tbe witness Roberts, tbe defendant in tbe attachment suit, testified that in fact the attachment was levied by tbe deputy-sheriff, so far as to take control of tbe property, and for a consideration of twenty-five dollars paid ■ to the deputy by him the possession was released; but there was no entry of any levy entered on tbe writ of attachment or elsewhere.

Tbe second and third pleas presented a good defense to tbe action.

Au indemnifying bond is intended for tbe protection of tbe officer. Under our statute, no additional duty is imposed upon tbe officer because be has been indemnified. A bond of indemnity does not devolve upon a sheriff to commit a trespass, or do an illegal act. In no event can it do more than shift tbe burden on him to show that tbe prop-ei’ty was not subject to levy. The evidence showed that tbe debt upon which the attachment issued was for rent of a dwelling, and the property pointed out was furniture in the rented house apparently in the possession of the tenant. Prima facie, the officer was liable for not making the levy, but he was not absolutely liable. If the property did not belong to the tenant — if it was not subject to levy by attachment — the plaintiff suffered no injury, and sustained no damage. Under the facts proven by the plaintiff, prima facie the property was liable, and the burden rested upon the sheriff to prove his defense, by showing that the property was not subject to levy under the attachment. — Mason v. Watts, 7 Ala. 705; Leavitt v. Smith, Ib. 181; Winter v. Bigelow, 9 Por. 483; Smith, Stewart & Co. v. Castellow, 88 Ala. 355; Abbott, Downing & Co. v. Gillespy, 75 Ala. 184; Williams v. Strobach, 59 Ala. 493 ; Governor v. Campbell, 17 Ala. 569. There was no error in admitting such testimony.

Section 12 of the act establishing the City Court of An-niston (Acts of 1888-9, p. 569) provides that, in cases of appeal, if there be error, the Supreme Court shall render such judgment as the court below should have rendered, or reverse and remand the same for further proceedings, as shall be deemed right. Although there is proof tending to show that the property pointed out to the sheriff may not have been subject to levy under the attachment, the real contest seems to have been rested upon other grounds, The rulings of the trial court were not in accord with the principles here declared, and we are of opinion that the ends of justice would be better promoted by a reversal of the case.

Reversed and remanded.