O'Bryan Bros. v. Webb

McCLELLAN, C. J. Action by O’Bryan Brothers against Webb, sheriff, and the sureties on his official bond. O’Bryan Brothers were plaintiffs in action .to recover money against one Abernathy, in which attachment was levied on stock of goods, and plaintiffs had judgment with order for sale of attached property; the sheriff failed to execute said venditioni exponas and to make plaintiff’s recover thereon, and for that failure this shit is brought. The defense ivas that the property attached was destroyed by fire prior to the advertised day of sale without fault, of the officer. The sheriff having the custody of the property under the levy of the attachment, it was his duty to preserve it and keep it safely, but his duty was not an absolute one. He was not an insurer of the property against fire, or other adventitious destruction or loss; but it ivas incumbent upon him only to use reasonable care and diligence in keeping it, the care which a man “of ordinary discretion and judgment might reasonably be expected to' use in reference to his own property;” and he and his sureties are liable only for a loss which has resulted from a failure on his part to use that degree of care. — Price v. Stone, 49 Ala. 543, 551; 25 Am. & Eng. Ency. Law, p. p. 712, 713. On, the evidence in this case, it cannot be affirmed as matter of law that the sheriff failed to exercise the degree of care required of him in the conservation of this property. Whether he did or not was a question for the jury, and it- was properly submitted to .the jury in the charges given at defendant’s request. [264] The remaining exceptions reserved to the court’s ruling on the competency of evidence, which are insisted upon in appellant’s brief, are without merit. The circuit court did not err in sustaining demurrers to the original counts- of the complaint. They should have averred that the -sheriff’s failure to execute the venditioni exponas ivas wrongful, negligent or the like, especially as it appeared by them that the order was made only a little over a month before the suit was instituted. Evidence that the sheriff had had reasonable time to malee the sale and had failed would, prima facie, support such averment of wrongful or negligent failure, leaving the burden on defendants to' bring forward special facts in refutation of it. Affirmed. Tyson, Simpson and Anderson, J. J., concurring.