Newcomb Bros. Wall Paper Co. v. Wiggins

MAYFIELD, J. This is an action by appellant, a plaintiff in judgment against appellee, a sheriff, for failure to make money on an execution and failure to properly and promptly execute a writ of seizure which came into his hands as such officer. [1] In actions like this the sheriff is held to the duty of exercising due diligence. Hallett v. Lee, 3 Ala. 28. The sheriff is under no duty to make a levy unless the defendant in the writ owns, or at least is in possession of, the property legally subject to be levied on, and which by the exercise of due diligence the sheriff can find. Unless there be property subject to levy, within the reach of the sheriff, "and which by the exercise of reasonable diligence he can find, he is guilty of no neglect of duty in not levying. Governor v. Campbell, 17 Ala. 566; Higdon v. Fields, 3 Ala. App. 324, 57 South. 58. [2-4] In actions like this the burden is on the plaintiff, not only to show default or negligence on the part of the sheriff, as for which the law imposes liability, but to show the extent of his damages, which is usually done by proving the value of the property liable to the process, which the sheriff negligently or wrongfully failed to subject to the mandate of the process. It is not sufficient to show the value of all the property owned by the defendant in process, but there must be proof as to the value of that which was liable to the process, and which, but for the negligence or fault of the sheriff, would or should have been subjected to the writ. As said by Brickell, C. J., in the case of Smith v. Heineman, 118 Ala. 205, 206, 24 South. 364, 72 Am. St. Rep. 150, the presumption is that sworn public officers have performed their duty in this respect, and this presumption obtains until disproved by him who asserts the contrary. [5] In an action like this it is not sufficient, to authorize a judgment against the sheriff, to offer proof which tends to show negligence on the part of such officer in connection with the execution of the process; the plaintiff must show that the negligence or fault of the sheriff resulted in damages to the plaintiff, or proximately contributed thereto. As we read this record, the trial court duly observed these rules of law, and submitted with proper instructions to the jury each of the questions which was in dispute. *553 [6] The liability of the sheriff vel non was a question of fact for the jury, and the plaintiff was not entitled to the affirmative charge. [7] Where the sheriff levies the process upon certain property, the presumption obtains that such property is liable to the process. The presumption, however, is not conclusive; proof may show that such property is not in fact liable. Wilson v. Strobach, 59 Ala. 488; Wilson v. Brown, 58 Ala. 62, 29 Am. Rep. 727; Abbott, Downing & Co. v. Gillespy, 75 Ala. 180; Smith v. Heineman, 118 Ala. 202, 24 South. 364, 72 Am. St. Rep. 150. In Gillespy’s Case, supra, it is said: “In actions óf this nature, the general rule as to damages, in the absence of statutory regulation, is that the amount to be recovered must be commensurate with the extent of the injury suffered by reason of the sheriff’s unintentional default or breach of duty. The actual injury sustained by the plaintiff is, in other words, the measure of his damages. 2 Greenl. Ev. § 599; Gay v. Burgess, 59 Ala. 575; Sedgwick on Dam. 634. Hence, it is plainly competent for the defendant to show that the plaintiff has not been damnified; that he has sustained no damage for which he can justly claim compensation.” In Wilson v. Strobach, 59 Ala. 493, which was an action like this, it is said: “The plaintiff in execution is entitled to compensation only for the damage actually sustained, and not the speculative damage. It is not to be supposed that he would have purchased property, or an interest in property, having no intrinsic value, with the view of future litigation.” Applying these principles to the case in hand and the evidence as shown by this record, the plaintiff was not entitled to the affirmative charge as for any amount of damages. The trial court instructed the jury fully, by written requested charges, at the instance of plaintiff and defendant, and by a lengthy oral charge, and then by an additional oral charge, after the jury had been out for some time. It is needless to treat these written charges separately, those given for the defendant or those refused to the plaintiff. It is saifficient to say that they have been carefully examined, and that no reversible error is found. Charges I and E, given at the request of the defendant, were properly given. Not only did they assert correct propositions of law applicable to the ease, but they were rendered necessary to prevent certain charges, given at the request of the plaintiff, from misleading the jury. Charges 26, 27, 29, and 30, given at the request of plaintiff, made the giving of I and E and other charges given at the request of defendant necessary. The ease has been pending in the lower courts for more than ten years. There have been three or four trials in the meantime, and hence every phase of the ease has been thoroughly and repeatedly considered by counsel and the trial court; and after a careful examination of this record we find no reversible error. It would do no good to discuss the propositions of law involved, nor the evidence. It is sufficient to say that they have ail been carefully examined by us, and that we find no reversible error. Affirmed. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.