
    Mathis v. Carpenter.
    
      Motion for Swmma/ry Judgment against Sheriff and Sureties.
    
    1. Appointment of deputy by sheriff, and proof thereof; filing oath of office. — A sheriff may be held liable for the default of a third' person as his deputy, although he denies the fact of appointment, on proof of the performance of official acts by the person claiming to be a deputy, with his knowledge and in his presence, and his subsequent recognition of such acts ; and the fact that the deputy’s oath of office was filed in the office of the clerk of the City Court, instead of the judge of probate (Code. § 253), does not affect the question of the sheriff’s liability for his official acts.
    2. Official bonds of sheriff as evidence. — In an action (or summary proceeding) against a sheriff and the sureties on two official bonds given by him, pleas being filed bv all of the defendants jointly, the bonds can not be excluded from the jury as evidence because two of the sureties on the first bond were not on the second.
    3. Bond of indemnity, as justifying or requiring levy. — When an attachment is placed in the hands oí á sheriff to be levied, a bond of indemnity given, and property pointed out which is prima facie subject to levy, he may nevertheless refuse to make the levy, if he is satisfied that the property is not liable; but proof of these facts makes out a prima facie case of liability against him, and imposes on him the onus of proving that the property was in fact not subject to levy.
    Appeal from tbe City Court of Anniston.
    Tried before tbe Hon. B. E. Cassady.
    Tbis was a motion by G. H. Matbis against L. P. Carpenter as sheriff, and Wiley Carpenter, W. M. Hyatt, J. E. DeArman, J. B. Palmer, J. 0. Watson, and Jas. E. Watson, as sureties on bis official bonds; and was commenced on 'tbe 5tb July, 1890. Tbe cause of action was tbe sheriff’s failure to levy an attachment, which tbe plaintiff bad sued out against one 0. Roberts, bis tenant, on certain goods, furniture and effects in tbe rented bouse, and which were pointed out to him as subject to levy, and a' bond of indemnity given to procure tbe levy. The attachment was sued out on tbe 7th December, 1889, for tbe unpaid refit of a, dwelling-house, and was placed in tbe bands of one C. E. Porter, as a deputy of tbe sheriff, to be levied ; but no return of its levy, or failure to find property subject to levy, was ever made. Carpenter, tbe sheriff, denied that be bad ever appointed Porter as bis deputy, and Caldwell, bis principal deputy, testified that be bad appointed Porter “on bis own account;” while tbe plaintiff adduced evidence of repeated official acts performed by him as deputy, and tbe sheriff’s recognition of them. The plaintiff offered in evidence tlie oath of office as deputy taken by Porter, but the court excluded it as evidence, because it had been filed in the office of the clerk of the City Court, instead of the judge of probate; to which ruling the plaintiff excepted. _ The sheriff had executed two official bonds, the first being signed by all of his six co-defendants as sureties; and the other, which tvas required at the instance of DeArman and Palmer, who asked to be discharged from further liability, was signed by the other four defendants. The plaintiff offered both of these bonds in evidence, but the court excluded the first, on objection by the defendants, “on the ground that it had ceased to be the official bond of said Carpenter before the commencement of said attachment suitto which ruling plaintiff excepted. Boberts, the defendant in attachment, Avas allowed to testify, against the objection and exception of the plaintiff, that he hod no property which was subject to levy under the attachment; and he further testified, that the furniture in his house belonged to his wife, . and that he paid Porter $25 not to remove it. under the levy. It was proved that Porter had absconded. This being “substantially all the evidence,” and a jury having been waived, the court rendered judgment for the defendants. The plaintiff appeals, and assigns as error the judgment of the court and the several rulings on evidence above stated.
    Matthews & Whiteside, for appellant.
    Caldwell & JohnstoN, contra.
    
   COLEMAN, J.

Appellant as plaintiff moved for a summary judgment against the defendant Carpenter, as sheriff, and liis sureties, for failing to levy an attachment. The aA^erments of the motion are, that the writ of attachment Avas placed in the hands of the sheriff, property pointed out to him as belonging to the defendant in attachment, and .that the sheriff Avas duly indemnified to make the levy. The defendants’ pleas were three in number : 1st, that the writ was not received by him, or any one authorized to receive it; 2d, that defendant had no property subject to levy under the attachment; and, 3d, the same could not have been executed by the exercise of due diligence.

The proof is ample to show that the sheriff, Carpenter, was liable for the acts of C. F. Porter as his deputy. The testimony of the clerk of the court showed that Porter acted as the deputy-sheriff in the presence of the sheriff; that he was in the habit of receiving all kinds of process; that in fact be receipted for executions in tbe name of tbe sheriff, by him as deputy, collected money on executions, made due return of tbe collections in tbe name of tbe sheriff, and was generally understood to be tbe deputy-sheriff. To tbe same effect is tbe testimony of certain attorneys, who practiced in tbe court; and in regard to tbe particular writ of attachment, upon inquiry being made of Caldwell, whom tbe sheriff acknowledges to have been bis regular deputy-sheriff, was referred by him to'Porter as tbe officer who bad tbe writ for execution. There is other evidence, also, sufficient to satisfactorily show that Porter was recognized by tbe sheriff as bis deputy.

Tbe pleas are framed jointly for all tbe defendants, and there is no plea which justified tbe exclusion of either bond executed by tbe sheriff, although some of tbe defendants were sureties upon one bond, who were not sureties upon tbe other.

Section 3951 of tbe Penal Code imposes a penalty upon any officer required by law to file an oath of office, who-enters upon tbe duties of bis office without first taking and filing such oath in tbe proper office. Tbe fact that Porter filed bis oath of office with tbe clerk of tbe court, instead of tbe probate office, did not relieve tbe sheriff of bis liability for tbe acts of Porter as bis deputy, if tbe evidence otherwise satisfactorily showed that be, Porter, represented himself as deputy-sheriff, and acted as’such with tbe knowledge and consent and approbation of tbe sheriff; and if tbe evidence is credible, there can be but little question of tbe existence of these facts. — Joseph v. Cawthorn, 74 Ala. 414.

That property in tbe possession of tbe defendant, apparently subject to levy, was pointed out, and an indemnifying bond executed to the sheriff, is fully proven. Tbe witness Roberts, tbe defendant in tbe attachment suit, testified that in fact the attachment was levied by tbe deputy-sheriff, so far as to take control of tbe property, and for a consideration of twenty-five dollars paid ■ to the deputy by him the possession was released; but there was no entry of any levy entered on tbe writ of attachment or elsewhere.

Tbe second and third pleas presented a good defense to tbe action.

Au indemnifying bond is intended for tbe protection of tbe officer. Under our statute, no additional duty is imposed upon tbe officer because be has been indemnified. A bond of indemnity does not devolve upon a sheriff to commit a trespass, or do an illegal act. In no event can it do more than shift tbe burden on him to show that tbe prop-ei’ty was not subject to levy. The evidence showed that tbe debt upon which the attachment issued was for rent of a dwelling, and the property pointed out was furniture in the rented house apparently in the possession of the tenant. Prima facie, the officer was liable for not making the levy, but he was not absolutely liable. If the property did not belong to the tenant — if it was not subject to levy by attachment — the plaintiff suffered no injury, and sustained no damage. Under the facts proven by the plaintiff, prima facie the property was liable, and the burden rested upon the sheriff to prove his defense, by showing that the property was not subject to levy under the attachment. — Mason v. Watts, 7 Ala. 705; Leavitt v. Smith, Ib. 181; Winter v. Bigelow, 9 Por. 483; Smith, Stewart & Co. v. Castellow, 88 Ala. 355; Abbott, Downing & Co. v. Gillespy, 75 Ala. 184; Williams v. Strobach, 59 Ala. 493 ; Governor v. Campbell, 17 Ala. 569. There was no error in admitting such testimony.

Section 12 of the act establishing the City Court of An-niston (Acts of 1888-9, p. 569) provides that, in cases of appeal, if there be error, the Supreme Court shall render such judgment as the court below should have rendered, or reverse and remand the same for further proceedings, as shall be deemed right. Although there is proof tending to show that the property pointed out to the sheriff may not have been subject to levy under the attachment, the real contest seems to have been rested upon other grounds, The rulings of the trial court were not in accord with the principles here declared, and we are of opinion that the ends of justice would be better promoted by a reversal of the case.

Reversed and remanded.  