95 Ala. 482 | Ala. | 1891
The appellee, C. A. Johnson, sued out an attachment against the Rogers Printing Company, and directed the sheriff to levy the writ on certain property as the property of the defendant in attachment. The sheriff required a bond of indemnity, which was made; and he then executed the writ as directed. The property levied on was already in the sheriff’s possession when Johnson sued out his attachment, having been seized under writs of attachment which had been sued out by other persons against the same defendant. Nothing whatever was done under Johnson’s attachment except to indorse the levy on it. Within a day of two after the levy was made in this way, there having been no change whatever in the possession of the property, Johnson’s attorneys, in writing, ordered and directed the sheriff to release and discharge the property from the levy under Johnson’s attachment, and notified the sheriff that Allen, who claimed to be the owner of the property levied on, had agreed to relinquish all claim against Johnson because of the levy of his writ, if- the property was released from that levy. Thereupon the sheriff released the property from that levy, but retained it under the prior writs sued out by other persons. After-wards, Allen sued the sheriff in trespass for taking the property upon which the several writs of attachment had been levied, and recovered a judgment against him for more than two thousand dollars. Thereupon the sheriff brought this suit on Johnson’s bond of indemnity, to recover the amount of said judgment and costs, which, it is alleged, have been paid.
The complaint in the action of trespass brought by Allen followed the form prescribed by the Code (p. 794, Form 23), and was against the sheriff alone. The writs which the sheriff had levied on the property were not referred to in the pleadings in that case. The sheriff’s defense in that case was conducted by the attorneys who represented the parties whose attachments had been levied before Johnson’s was sued out. Johnson was not notified of the pendency of that suit, and was not represented in its defense. Of course, Johnson’s bond of indemnity covered only the acts of the sheriff for which it was intended to afford him indemnity. The makers of that bond are not to be charged for the faults of the sheriff for which they did not undertake to
Conceding that the release did not discharge the sheriff’s liability because of the levy of Johnson’s writ, and conceding also that the . levy amounted to a trespass as against Allen, because he, as owner of the property, was then entitled to. the immediate possession of it, though the sheriff had the actual possession; yet it is plain that no substantial damages could have been recovered against the sheriff because of that levy. When property is already in the sheriff’s possession under former writs, his levy of other process upon it by merely making an indorsement to that effect imports only nominal damages to the owner of the property, if it is not subject to the process, if that levy is
Affirmed.