
    Bruister v. Gavin et al.
    
    
      Proceedings for Summary Judgment against Sheriff.
    
    1. Attachment; summary judgment against sheriff. — Where, after the levy of an attachment on personal property, and before the trial of the suit, the term of the office of the sheriff making the levy expires, and he turns over to his successor in office the writ together with the property levied on, and such succeeding sheriff delivered the property levied on to the defendant in attachment, if thereafter the execution issued upon a judgment rendered against the defendant in attachment is returned by the succeeding sheriff “no property found,” the plaintiff can not recover a summary judgment against such succeeding sheriff and the sureties on his official bond, for failure to make the money on the execution; since his act in discharging the levy of the attachment by surrendering the property to the defendant, did not render him or his sureties liable; he being nothing more than a mere bailee or agent of the former sheriff, with respect to such attachment.
    Appeal from the Circuit Court of Choctaw.
    Tried before the Hon. John C. Anderson.
    The facts of the case are sufficiently stated in the opinion.
    R. P. Rosch, for appellant,
    cited Lavretta v. Holcombe, 98 Ala. 508; Martin v. Hall, 70 Ala. 422; Kennedy v. Smith, 99 Ala. 83; Woolf olh v. Ingram, 53 Ala. 13; Ratliff v. Allgood, 72 Ala. 120; Gayle v. Johnson, 80 Ala. 388; Harbin v. Bell, 54 Ala. 389; Smith v. Heme-man, 118 Ala. 202; Code, §§ 544, 3133, 3770.
    O. R. Gavin, contra,
    
    cited Smith’s Condensed Reports, 9; Code of 1896, § 544;- Ryan v. Gouch, 66 Ala. 244.
   HARALSON, J.

:This was a motion under the statute for a summary judgment against the defendant, Geo. I. Gavin, as sheriff of Choctaw county, and the sureties on his official bond, for failure to make money on an execution, which by due diligence be could have made.

Tbe bill of exceptions shows, that the suit was begun by tbe plaintiff, tbe movant here, by attachment issued by a justice of the peace, against the Choctaw Mill Company; that tbe writ was placed in tbe bands of J. M. Young, who -was at that time sheriff of tbe county, who levied tbe same on a log cart as the property of defendant in attachment, and took tbe property into his possession ; that after tbe said levy, and before tbe trial of tbe attachment suit in tbe justice’s court, tbe term of office of tbe said Young as sheriff expired by limitation, and G. I. Gavin, the defendant, was elected and qualified as sheriff of said count}', and the said Young turned over to the said Gavin, as sheriff, the said writ of attachment, together with tbe said log cart, on which the writ bad been levied; that afterwards, on tbe trial of said suit in the justice’s court, the plaintiff recovered judgment against the defendant;. that the defendant took an appeal from said judgment to tbe circuit court of said county, and executed an appeal bond in said cause, and tbe said Gavin as sheriff delivered tbe log cart then in bis bands under the levy of said writ of attachment, to, and the same was disposed of'by the defendant in attachment and that the cart was worth $125. It was further shown that on the trial of said cause in the circuit court the plaintiff recovered a judgment against tbe defendant for $98.94 damages, besides $107.65 costs of suit, and execution having issued on said judgment against the defendant and tbe sureties on his appeal bond, the defendant Gavin, as sheriff, collected on said execution from the sureties on tbe appeal bond, the sum of $109.24, which be paid over to the plaintiff, after this motion was made, which sum tbe attorney stated in court on the trial, he did not ask judgment for, although it was included in bis motion; that this sum was all that had ever been collected on said execution, and he returned tbe execution “no property found,” as to the defendant in attachment, the Mill Company. The plaintiff submitted no proof that the money could have been made by due diligence as alleged in his motion.

The court rendered judgment in favor, of the defendants in said motion, to which plaintiff excepted and which he appeals to reverse.

Section 544 of the Code provides, that the sheriff levying an attachment, must take and hold the property attached, unless replevied, subject to the order of the court in which the attachment was pending. Section 1897 (2899) (3190) directs: “He must execute the writ with diligence, and, if practicable, perform the mandate thereof, and make return of his acts, to the clerk, three days before 'the first day of the return term of the writ.” Section 3133 (206) provides, that “In all cases, in which it is not otherwise expressly provided, when an office is vacated, except by the death of the incumbent, all books, papers, property and money, belonging or appertaining to such office, must, on demand, be delivered over to his qualified successor.”

It is said by Mr Freeman in his work on Executions: “The officer who commences must usually complete the execution of 'the writ. His term of office may expire after the levy and before the sale. This does not terminate his authority, nor even confer on his successor power to make the sale, if the venditioni exponas should be directed to him. By the levy of the writ upon chattels, the officer acquires a special property therein. This property continues after his removal, ancl even after his death. Hence, sale may be made by his executor or administrator.” — 2 Freeman on Exemptions, § 291.

It is said by Mr. Murfree: “It is no reason why a sheriff should not proceed to carry an execution into full effect by a sale of the property levied on, that he has been superseded by his successor, and that the return day of the process has passed. By the common law an execution is an entire thing, and a sheriff who has levied on goods is bound to complete the operation by selling them. He is not' absolved from this obligation, by 'delivering the goods and the execution to his successor.” — Murfree on Sheriffs, § 998.

In Bondurant v. Buford, 1 Ala. 364, this court said: “By a seizure of property under, the writ we have seen that a specia1 interest vests in the sheriff, who may sell it, even after the return (lay lias passed, without a venditioni exponas. It is on the ground of the special interest thus acquired by the sheriff, that the discharge of •the debtor, to tlie extent of the value of.the property seized, that an execution is considered an entire thing, and must be completed by him who -commences it.” To the -same effect is Leavitt v. Smith, 7 Ala. 175; Evans v. The Governor, 18 Ala. 659, 663, and Ryan v. Couch, 66 Ala. 244. In the last named case, our latest -on the subject, in which the foregoing principles find approval, it was said: “Wé do not think this view of the case is affected by sections 206 and 3190 -of the Code of 1876” (3133 and 1897 of Code of 1896). . After quoting each ¡of those sections-, — which ¡we have copied above, — the' opinion proceeds: “The decisions of this court and the recognized principles -of the common law, touching the duties of sheriffs, supera-d-d vitality to this statute (3190), and are in perfect harmony with its letter and spirit. It comes within the exceptions intended to be engrafted on section 206 by the law-making power.” Code, 1896, § 3133.

We must hold under the foregoing authorities, that the circuit court committed no error in rendering judgment for the defendant. He was nothing more than a mere agent or bailee of the former -sheriff, -and his act in discharging the levy by surrendering the property to the defendant in attachment, Ava-s in no sense an act for which he as sheriff or the -sureties on his bond as such were liable. Outside of this act, it is not pretended that .any liability accrued for not making the money.  