
    Musser & Porter v. Maynard et al.
    1. Sheriff: failure to return execution: liability for. An action cannot be maintained against a sheriff for a failure to return an execution within the seventy clays allowed by statute, without alleging and proving that the plaintiff in execution was injured by the neglect, the extent of such injury being the measure of recovery.
    
      Appeal from Cedar District Court.
    
    Monday, December 13.
    On tbe 6tli day of June, 1877, the plaintiffs recovered a judgment of $279.38, in the Johnson District Court, against Theodore Pearson and Alexander Pearson, who were residents of Cedar county. The judgment drew interest at the rate of ten per cent per annum. August 16, 1877, plaintiffs caused an execution to issue upon said judgment to the sheriff of Cedar county. The execution was received by A. B. Maynard, one of the defendants herein, who was then sheriff of said county, on the 21st day of August, 1877. August 17, 1878, the execution was returned with nothing made thereon.
    This action was commenced September 28,1878, to recover of the said sheriff and the sureties on his bond tire amount of the said judgment, interest and costs. It is claimed that the defendants in execution at the time the execution was received by Maynard, and afterwards, had a large amount of personal property in Cedar county liable to execution, and enough to have satisfied said execution, and that said Maynard neglected to levy upon and sell said property, and suffered the same to be disposed of by said Pearsons, who have since removed from the State, and are insolvent. It is also claimed that the said sheriff and his sureties are liable to the plaintiffs for the full amount of the said judgment, interest and costs, for failing to return said execution in seventy days from its receipt by defendant Maynard.
    Issue having been taken upon the allegations of the petition, there was a trial by the court and a judgment' was rendered for the plaintiffs for the full amount of the judgment, interest and costs in question. Defendants appeal.
    
      Wolf da La/ndt and Piatt da Oarr, for appellants.
    
      'Balter <& Ball, for appellees.
   Rothrock, J.

I. The first question presented in argument is whether the defendant is liable in damages by reason °f bis neglect to return the execution to the office of the clerk of the Johnson District Court. SecgQg^ 0£ Q0(je provides that “ every officer to whose hands an execution may legally come shall give a receipt therefor if required, stating the hour when the same was received, and shall make sufficient return thereof, together with the money collected, on or before the seventieth day from such delivery.”

It will be observed that this statute does not provide that tire sheriff shall be liable to an action for a mere failure to return the writ. We think whether he is so liable must depend upon the fact that the plaintiffs were injured by the delay in returning the writ. If by reason of the delay, the plaintiffs were in any manner prejudiced, or hindered, prevented or delayed in the collection of their judgment, it is probable an action would lie. In Cone v. Magee, 8 Barr., 240, it was held that a sheriff was not liable to an action for merely omitting to make a return until after the. return day. In Kidder v. Baker, 18 Vermont, 454, it was held that where neither the body nor property of a debtor is within the bailiwick of a sheriff and he neglects to return the execution within its life with his return of non est wimntus, he is liable to the creditor for actual damages only, and the sheriff may show that plaintiff has not been damnified. On the other hand, in Goodwin v. Willard, 5 Met., 517, it was held that an officer was liable to an action for neglecting to return an execution within the proper time, although the judgment creditor suffers no injury by such neglect. In Ledyard v. Jones, 7 N. Y., 550, it was held that in an action against a sheriff for neglecting to return an execution the measure of damages is the amount of the judgment upon which the execution issued, and that it was not necessary for the plaintiff to allege or prove special damages, but that the sheriff might show in mitigation of damages that the defendant in the execution had no property upon which he could have levied. See, also, to the same effect, The Bank of Rome v. Curtis, 1 Hill, 275, and Pardee v. Robertson, 6 Hill, 550. But in New York it appears that the statute which required the return to be made within a certain time also provided that “for any violation of this provision, such sheriff or other officer shall be liable to an action at the suit of any party aggrieved.” 2 Revised Statutes, 358, § 80. This provision expressly authorizes the action. We have no corresponding provision in the statutes of this State. Our attention is called to section 671 of the Code, by which public officers are required to give a bond, conditioned that they will faithfully perforin all the duties required of them by law, and also to section 2552, which provides that suit may be brought upon the bond by any one who has sustained an injury in consequence of a breach thereof. It is claimed that these provisions are substantially the same as the statute of New York. But it will be seen that the very section of the New York statute which requires the execution to be returned within a certain time, expressly gives the right of action, while in our statute the right arises from mere inference. We do not think it was intended that a plaintiff should have a right of action for a mere neglect to return the writ without more. If no injury resulted from the act, the plaintiffs are not within the statute.

It will be seen from the foregoing authorities, and others that might be cited, that there is a conflict in the adjudicated cases upon this question. But we think an examination of the cases will 'show that when liability is held to attach for mere neglect to return tbe writ, within tbe time fixed by law, tbe statute itself gives tbe right of action, or by tbe law in force tbe body of tbe defendant is liable to be seized in execution and imprisoned. We are clearly of the opinion that under our statute tbe action should not be maintained without alleging and proving that the plaintiff in execution was injured by tbe neglect to return the writ. The plaintiffs in the case at bar so understood tbe law at tbe trial in the court below. They pleaded that the defendants in execution had property sufficient to satisfy the same, and upon that question they took tbe burden of proof.

II. We will now proceed to inquire whether tbe judgment of the court below can be sustained upon tbe evidence as to the neglect of the sheriff to levy upon and sell' certain property of the defendants in execution.

Tbe judgment against tbe sheriff and bis sureties in the court below was for $321.92, being tbe full amount of tbe original judgment, interest and costs. It is conclusively shown that one of tbe defendants bad no property liable to execution. All he had was mortgaged to other parties before the defendant herein received the execution. It appears that tbe defendants in execution owned a threshing-machine jointly, and, as we understand the evidence, one of them had mortgaged bis interest to other parties. It seems that the interest of tbe other was afterwards sold by him for $25. It is urged that the sheriff should have levied upon the one-half interest in tbe threshing-machine, and some growing corn which one of tbe defendants cultivated as a tenant upon tbe farm of one Heppenstall upon tbe shares. But there is no evidence in tbe record before us tending to show what tbe value of the growing corn was. It is trué there is evidence showing tbe value of corn per bushel in that neighborhood in November after tbe execution was issued, and after the crops of that year had matured, but that evidence does not take into account the fact that this corn, when it is claimed the levy and sale should have been made, was unripe and immature, and tlie cost of harvesting, the share of the landlord, the quantity which was exempt from execution and to be set apart to the defendant in execution. In short, we can find no basis upon -which the amount of the judgment was aril red at, and conclude that the court below must have found the defendants liable for the full amount for merely neglecting to return the execution. Under these circumstances we must reverse the judgment and remand the cause for a new trial upon the question whether the defendants in execution, or either of them, had property liable to be seized .in execution which the sheriff should have, by the exercise of reasonable diligence, discovered, levied upon, and sold. Until that is shown, and it is further made to appear what the value of such property was, no judgment should be rendered for the plaintiffs. ■ E™SJSÜ.

on rehearing.

Rothrook, J.

— Appellees have filed a petition for rehearing in this case, which we will briefly notice.

1st. It is contended that in an action against the sheriff for failure to return an execution, such failure to return makes the sheriff grima facie liable for the debt, and the burden of proof is on the sheriff to show affirmatively that there was not sufficient property of the defendants in execution to satisfy tlie writ. It is correct that the foregoing ojnnion does not determine the question upon which party rests the burden of proof. That question was not determined because the case did not require its determination. The plaintiffs voluntarily assumed the burden of proof in the court below. They introduced about all the evidence that was introduced as to the property and its value. In considering the evidence as fixing the rights of the parties this court cannot be guided by the source from which the evidence emanates.

2nd. As to the sufficiency of the evidence upon' the value of the property we desire to add nothing to the opinion. The petition for rehearing will be overruled.  