Fultz v. Castleberry

,Hill, C. J. The undisputed facts of this case are: Mrs. Martha J. Wild had a judgment in justice of the peace court against G. S. Castleberry, and execution was issued thereupon and placed in the hands of Fultz, a deputy sheriff, who levied upon one bale of cotton as the property of Castleberry. Castleberry gave notice to Mrs. Wild that he would claim the bale as exempt from execution and sale, and there was a hearing upon this claim of exemption before the justice, and the justice denied it and refused to issue supersedeas. Thereupon Castleberry appealed to the circuit court, but did not give supersedeas bond. Fultz, acting under his execution after the supersedeas was denied, and 'before the trial on appeal, sold the cotton and paid the judgment and costs to the plaintiff therein, Mrs. Wild, and tendered the surplus, $24.95, to Castleberry, who refused to accept it. On the hearing in circuit court, Castleberry’s claim to exemption was sustained, and he thereafter brought suit against Fultz and his principal, Sheriff Sevier, for the value of the bale of cotton. Sevier and Fultz answered, justifying under the process in their hands, and again tendered the surplus of the sale, $24.95. • Castleberry recovered judgment, under issues sent to the jury, and the sheriff and deputy appealed. It is unnecessary to go into any questions as to the correctness of the instructions or rulings as to the evidence, for the facts admitted in the agreed'statement, summarized above, show that Castleberry had no case against the officers except for the surplus, and that was tendered before suit and in the suit. Thq exemption law provides: “An appeal may be taken tq the circuit court from any order or judgment rendered by the justice of the peace upon the filing of the affidavit and executing the bond required in other cases of appeal.” Kirby’s Digest, § 3908. This shows that appeals from an order refusing a supersedeas are to be governed by the general law controlling appeals from justice court; and, turning thereto, it is found: An appeal ipay be taken by complying with certain named conditions, one of which is the execution of an appeal bond; but an appeal ma/ be taken without such bond, on the express condition that “such appeal shall not operate as a suspension of the proceedings upon the judgment appealed from, and no certificate shall be given the appellant stating that an appeal in the cause has been allowed, and no execution be recalled.” Kirby’s Digest, § § 4666, 4667. Therefore it follows that Castleberry could not stay the execution without giving the bond, and it was the duty of the sheriff to obey the process in his hands. Castleberry’s subsequent judgment in the circuit court sustaining his claim to the bale of cotton as exempt from the execution established his right to the property against Mrs. Wild, and she is, of course, liable to him for the value of it. The only claim he ever had against the sheriff was for so much of its proceeds as he had in his hands after paying the judgment to Mrs. Wild, and this would be a credit on his claim against Mrs, Wild, and the sheriff has always offered payment of that sum. Reversed and remanded.