Moore v. Rooks

Riddick, J., (after stating the facts) .This is an action against sureties on a constable’s bond to recover the penalty provided by statute against an officer for neglect or failure to make sale of property taken under an execution or for failing to return an execution. Sand. & H. Dig. § 3107. No actual damages are alleged or proved. There can be no question that the facts stated in the answer relieve the bondsmen from liability to a penalty on account of a failure of the constable to make return of the writ, for it is alleged that he died before the time for making the return had expired. As to the failure to make the sale, the answer alleges in substance that the constable on the day set for the sale was by reason of illness and of mental and physical infirmity incapable either of making the sale or of understanding that it was his duty to make it. The answer further alleges that on the day of the sale the deputy constable offered to make the sale, but that plaintiffs by their attorney refused to permit him to do so. It is, of course, true that, if the execution had been properly delivered to the deputy and had been levied by him, he did not need the permission of plaintiff to authorize him to sell, for the execution was his authority to do 'that. He might have gone ahead- and made the sale without further consulting plaintiffs, so long as his authority as deputy continued. But, though he might have done this, yet if, by reason of the condition of his principal, he had doubts of his authority, and in that dilemma submitted the question to plaintiffs or their attorney, offering to make the sale with their consent, and they objected to the sale, and refused to consent thereto, they certainly have no right to hold the constable or his bondsmen liable for a penalty now for not doing that to which they objected then. The answer does not expressly state to whom the deputy constable made the offer to sell, and in this and in some other respects may not be as definite and certain as it should have been, but these are defects which should have been corrected by motion to make more definite and certain. Taken as a whole, we are of the opinion that the answer set up a good defense against the claim for penalty, and tliat the court did not err in overruling the demurrer, and the judgment must therefore be affirmed.