Daniels v. Hamilton

JUDGE, J. It is not necessary, in a proceeding like the present, to particularize by name in the notice the securities of the sheriff. But in the motion submitted to the court, the names of all the parties against whom judgment is sought should. be stated. McRae v. Colclough, 2 Ala. 74. There was an omission to do this in the present case, and if, in the demurrer to the motion, the defect of this omission had been specified, the demurrer would have been well taken. The court was prohibited by statute from the consideration of any objection not specifically named, and therefore committed no error in overruling the demurrer. It appears from the record that the sheriff alone pleaded to the motion; this made it necessary, before any judgment could be rendered against his sureties, that the fact of their surety-ship should be proved. The bill of exceptions purports to set out all the evidence introduced on the trial of the cause, and [108] it does not appear that any proof was made of this fact. Judgment was rendered against the sheriff and two other persons, stated in the marginal entry to be sureties of the sheriff; this was error on the part of the court. McRae v. Colclough, supra ; Harris et al. v. Bradford, 4 Ala. 214. The judgment was erroneous for another reason; it was rendered for the amount of the execution, interest, and tiventy, instead of ten per centum damages thereon, — the latter being the maximum amount of damages incurred by a sheriff for a failure to make the money on an execution, which by due diligence could have been made. Rev. Code, § 3083. A bond for the forthcoming of property which-had been levied on by the sheriff had been returned forfeited; subsequently, by leave of the court, the sheriff amended his return so as to show that the bond had not in fact been forfeited. The defendant asked the court to charge the jury, in effect, that the amended return of the sheriff had relation to the date of the original return, and was in all respects substituted for it. This charge the court erroneously refused to give. A sheriff is allowed to amend his return that the truth of the case may be shown; and when the amendment is made, it has relation to the state of the original return, and has the same effect as if it had been the return originally made. Smith v. Leavitts, 10 Ala. 92; Hodges v. Laird, Ib. 678; Leavitt v. Smith, 14 Ala. 279; Niolin v. Hamner, 22 Ala. 578. If the amended return is false, the sheriff is liable to the party injured in damages for the false return. Property exempt by law from levy and sale under legal process may be claimed after it has been levied upon, and a forthcoming bond executed for its delivery. The defendant in execution may assert his privilege to have it exempted at any time before the sale. Jourdan v. Autrey, 10 Ala. 226. The charge requested by the defendant embraced in substance the legal propositions above stated, and should have been given by the court. It was error also to refuse to give the 6th charge requested by the defendant. When a fact which is in its nature continuous is proved to exist, — and such is the nature of the fact of residence or non-residence, — its' continuance may be presumed. 1 Brickell’s Dig. 806, § 32. For the errors we have named, the judgment must be reversed and the cause remanded.