
    CARROLL, BROUGH, ROBINSON & HUMPHREY v. WEBB, Sheriff et al.
    (No. 2959.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 1, 1928.
    Rehearing Denied March 7, 1928.
    1. Sheriffs and constables <S=»I38(.I)— Proof of judgment, issuance, and delivery of execution and failure to make timely return makes pri-ma facie case, for recovery of debt, which sheriff must overcome by proof that nothing could have been collected (Rev. St. 1925, art. 3826).
    Proof of valid judgment, issuance of execution thereon, its delivery to sheriff, and his failure to make return within time prescribed by law, makes a prima facie case for recovery of full amount of debt, interest, and costs, under Rev. St. 1925, art. 3826, by execution plaintiff, from sheriff and his surety, and burden is on sheriff to overcome such case by proof that nothing could have been collected on execution by proper official diligence.
    2. Sheriffs and constables 38(2) — Sheriff’s return on execution is admissible in defense on motion for judgment for failure to make timely return, though made after return day (Rev. Si. 1925, arts. 3825, 3826).
    Sheriff’s return on execution is admissible in his defense on motion for judgment against him and his surety, under Rev. St. 1925, arts. 3825, 3826, for failure to- make return within time prescribed, though made after return day and citation to answer motion; latter fact going to credibility of return.
    3. Sheriffs and constables 38(3) — Sheriff’s return on execution held insufficient to overcome prima facie case on motion for judgment for failure to make timely returni (Rev. St. 1925, arts. 3825, 3826).
    Sheriff’s return, showing receipt of execution nearly two months before signing return, which stated that he found no property subject to execution and traveled no miles in serving writ, held insufficient to overcome prima facie ease, established on motion for judgment against him and his surety, under. Rev. St. 1925, arts. 3825, 3826, for failure to make timely return; being incomplete and irregular and failing to support allegation of diligent search in answer.
    4. Sheriffs and constables <®=»l39(2)— Execution plaintiff may recover at least nominal damages and costs for sheriff’s unexcused failure to make timely return (Rev. St. 1925, art. 3826).
    Execution plaintiff is entitled to recover at least nominal damages and costs from sheriff and his surety, under Rev. St. 1925, art. 3826, for his failure to make return within time prescribed by law, where he does not show valid excuse, though his misconduct caused plaintiff no injury.
    Appeal from Potter County Court; Sam B. Motlow, Judge.
    Action by Carroll, Brougli, Robinson & Humphrey, a corporation, against the Red Eront Store, a corporation, in which an attachment was issued and levied by Reeder Webb, Sheriff of Ector County. Judgment against defendant, and the sureties on its re-. plevy bond, and, from a judgment against the sheriff and his surety, on plaintiff’s motion for judgment against them because of the Sheriff’s refusal to levy, and make return on, execution against the sureties on the replevy bond, plaintiff appeals.
    Reversed and remanded.
    W. A. Palmer, of Amarillo, for appellant.
    Gossett & Collat'd, of Odessa, and Turner, Culton & Gibson, of Amarillo, for appellees.
   JACKSON, J.

On April 15, 1927, Carroll, Brough, Robinson & Humphrey, a corporation, hereinafter called appellant, filed suit in the county court of Potter county, Tex., against the Red Eront Store, a corporation, and secured the issuance off a writ of attachment by the clerk of said court, which was levied upon the goods of the Red Eront Store ' by Reeder Webb, the sheriff of Ector county Tex., to which Crane county, Tex., is attached for judicial purposes. After the levy of the writ of attachment, the Red Eront Store filed with said sheriff its replevy bond, upon which J. Rosner, M. Konez, and Joe Spegle are sureties, and the stock of goods levied upon was delivered by said sheriff to the Red Front Store.

On June 18,1927, the county court of Potter county, Tex., rendered judgment by default against the Red Front Store and its sureties on the replevy bond for the sum of 8513.50, costs, etc.

On- July 9, 1927, the appellant obtained the issuance of an execution out of the county court of Potter county, Tex., to be levied upon the goods, lands, and chattels of the Red Eront Store, and its sureties on the replevy bond, J. Rosner, Joe Spegle, and M. Konez.

On August 24, 1927, the appellant filed its motion in the county court of Potter county, Tex., alleging that the execution issued in said court on July 9, 1927, was forwarded to and received by Reeder Webb, the sheriff of Ector county, and also of Crane county, by reason of its attachment to Ector county for judicial purposes; that the Red Front Store and its sureties on its replevy bond resided in Crane county, Tex.; that Reeder Webb, the sheriff, failed ánd refused to levy said execution against the sureties on the replevy bond and refused to make any return on said execution; and that he, as principal, and the United States Fidelity & Guaranty Company, as his surety, by reason thereof, were liable and indebted to appellant for the amount of said judgment and costs; and sought judgment against the sheriff and his surety for said amount.

This motion was answered by general demurrer, general denial, and an admission by the sheriff of the receipt of the execution. He also pleaded that he made diligent search for property belonging to the Red Front Store and its sureties, but was unable to locate any property belonging to them or either of them, subject to execution, and that neither of said defendants, at the time the execution came into his hands, or thereafter before his return of the execution, had property within Ector or Oráne counties subject to execution; that he returned said execution to Potter county, showing in his return thereon, which he made a part of his answer, that no property could be found, for which reason the appellant had, in no way,, been injured. He also attacked the validity of the judgment upon which the execution was rendered.

The appellant, in reply to this answer, filed a supplemental petition, but we deem it unnecessary to give further details of the pleadings.

On a hearing before the court, judgment was rendered against the appellant and in favor of the sheriff and his surety, from which judgment this appeal is prosecuted.

The appellant introduced in evidence the execution, which discloses that on June 18, 1927, it recovered a judgment against the Red Front Store and its sureties on the re-plevy bond for the amount sued for, and the return on said execution, which reads as follows:

“Came to hand the 11th day of July, 1927, at - o’clock, and executed by levying on the following described property, as property of the defendant, to wit:
“And I found no property subject to execution. J. Rosner has moved out of the county. I think to El Paso. M. Konez has gone and taken all his belongings. Joe Spegle don’t have anything in his name.
“I actually and necessarily traveled ■ ■ ■ • miles in the service of this writ.
“Reeder Webb,
“Sheriff Ector County, Texas.”

This execution and return was filed in the county court of Potter county, Tex., by the clerk thereof September 3, 1927.

The appellant presents as error the action of' the trial court in rendering judgment against it and in favor of the sheriff and his surety, under the facts and circumstances revealed by the record.

The court filed findings of fact to the effect that the original judgment entered against the Red Front Store and its sureties for the sum of $513.50 was a valid judgment; that the execution was issued on July 9, 1927, on said judgment; that on September 3, 1927, the sheriff returned the execution into the county court of Potter county, Tex., with his return thereon as hereinbefore set out; that the officer failed to discharge his duty and return the writ to the court issuing the same within the time therein required, but that the prima facie case thereby made against the sheriff and his surety was overcome by the sheriff’s return showing that no' property was found subject to execution; and that the return on the execution was signed after return day and.after the sheriff had been cited to answer appellant’s motion for judgment against him and his surety.

Article 3826, R. C. S. 1925, provides:

“Should an officer neglect or refuse to return any execution as required by law, or should he make a false return thereon, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs to be recovered as provided in the preceding article.”

The preceding article (article 3825) provides that this amount is “to be recovered on motion before the court,” etc.

These are the articles under which the appellant proceeded in its motion to recover against- the sheriff and his surety. “The' failure of the officer to discharge his duty in the premises renders him and his sureties prima facie liable to the plaintiff in execution for the full amount of his debt, interest, and costs, and the burden is on the officer to overcome such prima facie case by showing that nothing could have been collected- on such execution by proper official diligence.” B. F. Goodrich Rubber Co. v. Valley Plumbing & Supply Co. et al. (Tex. Civ. App.) 267 S. W. 1036, and authorities cited. To the same, effect is Harston et al. v. Langston et al. (Tex. Civ. App.) 292 S. W. 648.

The appellant haying shown a valid judgment, the issuance of the execution thereon, its delivery to the sheriff, and his failure to make a return within the time prescribed by law, made a prima facie case for a recovery,which the officer was required to overcome by proof.

The sheriff’s return, though made after return day, was admissible in his defense, but was not sufficient, in our opinion, to overcome the prima facie case established by appellant. It is uncontroverted that Reeder Webb was sheriff of Crane county by virtue of its attachment to Ector county, of which he was sheriff. In his answer, he pleads that he made diligent search in both Ector and Crane counties in an effort to find some property belonging to the parties against whom execution was directed, and he states in his return that he found no such property. He shows that he received the execution on the 11th day of July, and the court finds that he signed the return after return day, and after he had been cited to answer the motion. His return also shows that he traveled no miles in serving the writ. There was ample time from the date of his receipt of the execution to his signing the return for the defendants to have left the county, taken their belongings or hidden out their property.

“When the sheriff makes an official return, it can be used to that extent in hi's own behalf. It is the official act, made under oath, and is prima faeie evidence in his own favor; but the fact that it was made after motion made against him will go to the credibility of the return, and we are of opinion it was properly received in evidence.” Vaughan v. Warnell, 28 Tex. 119.

In this opinion, the court was obviously passing upon the admissibility of the testimony and not the weight to be given to it.

The return of the sheriff in the case at bar is incomplete, irregular, and fails to support his allegation that he made diligent search for property in Ector and Crane counties belonging to the parties against whom the execution was directed, and, to our minds, seriously affects “the credibility of the return.”

'“The misconduct of the officer may have in fact occasioned no injury to the plaintiff; but the latter is nevertheless entitled to recover at least nominal damages in all cases where the officer does not show a valid excuse for not making his return.” Freeman on Executions, 3d Edition, Vol. 3, par. 368.

“The burden of proof is upon the officer; and, in a case like the present, he may be held liable, at all events, for nominal damages and costs, as in a case of an ordinary action against him.” Smith v. Perry, 18 Tex, 510, 70 Am. Dec. 295.

The judgment is reversed, and the cause .remanded. 
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