
    Hood v. Blair.
    
      Motion for Summary Judgment against Sheriff.
    
    1. Summary judgment against sheriff; in what court made. — A motion for a summary judgment against a "sheriff and his sureties, for his failure to make the money on an execution issued by a justice of the peace, must be made in the Circuit Court, when the amount of the judgment, with interest and costs, exceeds $100; and if less than that sum, in the justice’s court. — Code, §§ 3325, 3333.
    2. Same; joinder of causes of action; amendment. — In a motion for a summary judgment against a sheriff and his sureties, for his failure to make the money on two executions issued by a justice of the peace, one of which was for less than $100, there is an improper joinder of two separate and district causes of action, one of which is not within the jurisdiction of the court; but the motion may be amended, and the refusal to allow an amendment is a reversible error ; and a recital in the judgment-entry, that the objections raised by demurrer “can not be cured by amendment,” shows that the opportunity to amend was denied, although there is no bill of exceptions.
    Appeal from tbe Circuit Court of Cherokee.
    Tbe record does not sbow tbe name of tbe presiding judge.
    Tbis was a motion by S. M. Hood for a summary judgment against John S. Blair and tbe sureties on bis official bond as sheriff, for bis failure to make tbe money on two executions, or orders of sale, wbicb bad come to bis bands to be executed, and wbicb were issued by a justice of tbe peace, on two judgments rendered by bim in attachment cases; one of said judgments being for $60, besides interest and costs, and tbe other for $100. Tbe defendants demurred to tbe motion, assigning fourteen grounds of demurrer, among wbicb were these: (1) that tbe court bad no jurisdiction of tbe motion; (2) that tbe two cases were improperly joined in one motion; (3) that a summary judgment could not be rendered for the failure to make tbe money in an attachment case, or under a vend. ex. Tbe court sustained tbe demurrer generally, and tbe judgment-entry recites, “It appearing that tbe objections raised by tbe demurrers can not be cured by amendment, it is considered that said motion be dismissed.” There is no bill of exceptions in tbe record. Tbe judgment of tbe court is assigned as error.
    Walden & Son, for appellant,
    
      J. L. Burnett, contra.
    
   WALKER, J.

A summary judgment may be rendered against a sheriff, for failing to make tbe money on an execution issued by a justice of tbe. peace wbicb by due diligence might have been made, for tbe amount of tbe execution and interest, and five per-cent, damages on tbe amount thereof; and tbe motion must be made in tbe Circuit Court when tbe amount claimed, by reason of interest or damages, exceeds tbe sum of one hundred dollars. — Code, §§ 3325 and 3333. Under former statutes, such judgments could not be rendered against sheriffs, for any negligence or misfeasance on their part in levying process issued by, and returnable before justices of tbe peace. — Thompson v. Acree, 69 Ala. 178. Tbe motion in tbis case disclosed a state of facts authorizing a summary judgment against the sheriff for failing to make the money on the execution issued on the judgment for one hundred dollars. The Circuit Court was without jurisdiction to render such judgment for the failure to make the money on the execution on the judgment for sixty dollars. That matter presented a case for a summary judgment by a justice of the peace. The motion as made presents two separate and distinct causes of action, which could not be joined, and as to one of which the Circuit Court was without jurisdiction. The demurrer to the motion upon this and other grounds was properly sustained.

But the motion could ha,ye been amended so as to cure its defects. The Circuit Court erred in adjudging that the objections suggested by the demurrers could not be removed by amendment, and in dismissing the motion on that ground. A mere failure by the court to tender an opportunity to amend before dismissing the motion would not be reversible error, in the absence of any showing that the right to amend was denied. — Mahan v. Tatum, 69 Ala. 466. In such case, it is not made to appear that the appellant was denied a privilege to which he was entitled. There is simply a failure to show that the question as to the existence of the right was raised in the lower court. When, however, this right is expressly denied by the court, and the motion is dismissed on this ground, it sufficiently appears that the appellant was deprived of a valuable right, and this error to his injury entitles him to a reversal.

Reversed and remanded.  