Abbott, Downing & Co. v. Gillespy

SOMERYILLE, J. The action is one claiming damages against the sheriff and his sureties, for his failure to make the money on an execution in favor of the plaintiff, against one James W. McMillan. The gravamen of the action is the alleged negligence of the sheriff in failing to levy upon and sell the property of the defendant in execution, which was subject to levy and sale. In actions of 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. This can be done by any legal proof showing that the defendant in execution was totally insolvent, in the sense that he owned no property which was liable by law to be levied on and sold for the payment of the particular debt reduced to judgment, upon which the execution was issued. If the defendant in execution owns no property except such as is exempt from levy and sale, any effort by the officer to execute the writ may properly be deemed to be fruitless and unproductive of benefit to the plaintiff. The officer is excused because the law does not exact of him the doing of a useless thing.—Wilson v. Strobach, 59 Ala. 488; Bell v. King, 8 Port. 147 (5 Smith’s Cond. Rep. 221). So, if the personal property of the judgment debtor is encumbered by a mortgage or landlord’s lien for rent, or other lien, of the existence of which the plaintiff was chargeable with notice, and the amount of such encumbrance is shown to be in excess of the value of the property, it is equally manifest that no injury has been sustained, because a sale of the property would have realized nothing which could be applied in satisfaction of the judgment debt.—Wilson v. Strobach, supra ; 2 Greenl. Ev. § 585 ; Smith v. Hogan, 4 Ala. 98. It is, nevertheless, the settled law in this State, that where a sheriff has two executions in his hands, the lien of the one being superior to that of the other, in an action against him for failing to make the money on the junior execution, he can not protect himself under a return of nulla bona upon it, by showing the existence of the superior lien, unless the execution creating it was actually levied. This principle was declared in Bell v. King, 8 Port. 147, supra, more than forty years ago, when it was said by the court: “It can not be endured that a [186] sheriff shall be allowed to excuse himself from one neglect of duty by interposing another.” The rule would obviously be otherwise, under the principle last announced, where both executions had been simultaneously levied, dr where there had been a levy of the older one.—Smith v. Hogan, 4 Ala. 97, 98. The Code prescribes the manner in which a claim to property exemptions may be asserted. It may be done, in the first place, prior to any levy upon the property, or attempt to subject it to legal process. This is by written “ declaration and claim,” stating the property selected as exempt by proper description, signed by the owner, and verified by his oath. — Code, 1876, § 2828. Where such declaration and claim are made and filed for record in the office of the probate judge in the county in which the property is situated, neither the sheriff nor any constable is permitted to levy an execution or other legal process upon it, unless the debtor’s right to such exemption is contested by affidavit, denying its validity in the manner prescribed by section 2830 of the Code, and the bond, with sufficient security, as therein required, is first executed and approved by the levying officer.-Code, §§ 2830, 2828. If no such declaration or claim of exemption, however, has been filed for record, it is especially provided by the statute that “ no action shall lie against the officer making the levy, by reason that the property levied on is exempt to the defendant,' or his family under the Constitution or laws of the State.” Code, § 2833. The officer may, in other words, make the levy and force a claim of exemption to he lodged with him, which may be contested by the plaintiff in execution, as provided for by section 2834 of the Code. We can see nothing in the statute which makes it the absolute and imperative duty of the sheriff to levy upon exempt property, where the debtor has failed to file his declaration and claim in the probate office. Prima faoie, it may be said, perhaps, to be his duty to do so, as it is competent for the debtor to waive a privilege by refusing to assert his right of exemption.—Gresham v. Walker, 10 Ala. 370. But on this point, prior to our present system of statutory procedure regulating the subject, our decisions can not be said to be harmonious. Renfro v. Heard, 14 Ala. 23 ; State v. Johnson, 12 Ala. 840. It would certainly be the safer policy for the sheriff to make the levy, and more just to the execution creditor, because it enables him to contest the claim of exemption in a course of procedure prescribed with great accuracy of detail by the statute. — Code, §§ 2834, 2830. However this may be, it is very well settled, that, where a sheriff has legal process in his hands against a defendant, and fails to levy it upon property [187] shown to be in his, the- defendant’s, possession, or having levied it, discharges the levy without selling, the onus is shifted upon the sheriff to show a legal excuse for not levying or selling, as the case may be.—Wilson v. Brown, 58 Ala. 62, and authorities cited, p. 64; Whitsett v Slater, 23 Ala. 626. The foregoing principles are sufficient to determine this cause upon another trial, which must be ordered for several erroneous rulings on the evidence. It was error to permit the witness, Warwick, to testify that he, as sheriff, during his term of office, had returned sundry executions against McMillan, “ no property found.” No excuse was given for not proving this fact by the record, or a certified copy of it, as the legal effect of the evidence was to prove both the existence and contents of these executions. It is not the same thing as stating that, when sheriff, the witness made diligent search for property belonging to defendant and found none — a fact which it was permissible for him to prove. Childs v. The State, 55 Ala. 28; Hames v. Brownlee, 71 Ala. 132. Nor should the court have permitted the same witness to be asked whether McMillan was solvent or insolvent. Insolvency is a legal conclusion following from certain facts and circumstances, from which it may be inferred. ■ It can not be testified to as a collective fact. The circumstances or facts from which it is deducible must be proved.—Brice v. Lide, 30 Ala. 647; Nuckolls v. Pinkston, 38 Ala. 615. It was competent to be proved, however, by evidence of executions issued on other judgments against McMillan, with the return of “ no property found,” and the court did not err in permitting this to be done.—Loeb v. Peters, 63 Ala. 243. It was no defense for the sheriff that he declined to levy upon property in the possession of the execution debtor, because he honestly believed it to be exempt. When the property was pointed out to him by the plaintiffs’ attorney, and he declined to levy upon it, he acted at his own peril. He was ■prima faeie liable to the plaintiffs for the just value of such property, not exceeding the in jury sustained, without regard to his motive in refusing to execute the writ according to its mandate. lie could only protect himself by proving satisfactorily that the property so pointed out was exempt from levy and sale under legal process, or that it was so encumbered with liens as to render a levy upon it fruitless and unproductive of any benefit to the plaintiffs. There was no error in admitting in evidence McMillan’s schedule of exemptions, wdiich he had prepared in conformity to the requirements of the statute, before any levy upon his property. Such “ declaration and claim,” properly prepared, verified and filed for record, is made by statute to be prima [188] facie evidence of its correctness as against all tbe creditors of tbe claimant. — Code, 1876, § 2831. The judgment must be reversed and the cause remanded.