
    (78 South. 905)
    NEWCOMB BROS. WALL PAPER CO. v. WIGGINS.
    (8 Div. 113.)
    (Supreme Court of Alabama.
    April 25, 1918.
    Rehearing Denied May 30, 1918.)
    1. Sheriffs and Constables <&wkey;106 — Failure to Make Levy — Negligence.
    Where sheriff is called upon to levy execution upon property he is not liable for negligence in failing to make levy where there was no property on which to levy, or where by the exercise of reasonable diligence he could have found no such property.
    
      2. Evidence <&wkey;83(7) — Presumption—Regularity of Proceedings of Sheriff.
    _ In an action against a sheriff for failure to levy execution, the burden of proving negligence and damages resulting therefrom is upon the plaintiff; the presumption being that the sheriff performed his official duty.
    3. Evidence <&wkey;83(7) — Presumption—Official Duty — Sheriff.
    A sheriff will be presumed to have exercised due diligence in the execution of a writ of seizure.
    4. Sheriffs and Constables <&wkey;138(3) — Action — Negligence in Making Levy — Evidence.
    In an action against a sheriff for negligence in making levy of execution, damages can be proven only by evidence of the value of property subject to execution upon which sheriff failed to levy; evidence of value of all of debtor’s property being insufficient.
    5. Sheriffs and Constables &wkey;>106 — Negligence in Levying Execution — Liability of Sheriff.
    A sheriff is not liable for negligence in failing to levy execution unless such negligence resulted in actual damages or proximately contributed thereto.
    6. Sheriffs and Constables &wkey;>140 — Action — Negligence in Levying Execution — Question foe Jury.
    In an action against sheriff for negligence in levying execution, whether sheriff was guilty of negligence resulting in actual damages to plaintiff is a question for jury.
    7. Sheriffs and Constables <&wkey;138(l) — Execution — Presumption.
    Property upon which sheriff levies exeration is prima facie subject to execution, but evidence to the contrary may rebut this presumption, and show property to be in fact exempt from execution.
    Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.
    Action by the Newcomb Bros. Wall Paper Company against James H. Wiggins as sheriff, for failure to execute process and to seize property subject thereto. Transferred from the Court of App'eals under section 6, p. 449, Act of April 18, 1911. Judgment for defendant and plaintiff appeals.
    Affirmed.
    'jChe facts sufficiently appear. The following are the charges given for defendant:
    (I) You cannot find for plaintiff for the value of any property that was subject to the writs because of the failure to search for the property, unless you are reasonably satisfied that a search would have found the goods.
    (E) Although Seelye may have had the property in his possession after October 28th, and disposed of it, yet if the sheriff was not negligent with respect to seizing such property, he would not be liable.
    The following charges were given at the request of plaintiff:
    (26) While the sheriff’s liability may be only for the value of that which he has let go negligently, yet there is a duty resting upon him to make search for property subject to writs in his hands, and to not only make search, but to make diligent search, prompt search, and vigOant search.
    (27) 'It was the duty of the sheriff to seize the goods under the writs in his hands, whether he had the inventory or not, within a reasonable time after the processes came into his hands, and if he failed to do so, he was negligent, independent of any levy.
    (29) Any property sold by Seelye while the execution, issued October 28, 1902, was in the sheriff’s hands was subject to the lien of said execution, and it was the duty of the sheriff to have searched therefor.
    (30) It was the duty of the sheriff to seek the execution debtor, demand payment of the execution, and search for property.
    E. W. Godbey, of Decatur, for appellant. Callahan & Harris, of Decatur, for appellee.
   MAYFIELD, J.

This is an action by appellant, a plaintiff in judgment against appellee, a sheriff, for failure to make money on an execution and failure to properly and promptly execute a writ of seizure which came into his hands as such officer.

In actions like this the sheriff is held to the duty of exercising due diligence. Hallett v. Lee, 3 Ala. 28. The sheriff is under no duty to make a levy unless the defendant in the writ owns, or at least is in possession of, the property legally subject to be levied on, and which by the exercise of due diligence the sheriff can find. Unless there be property subject to levy, within the reach of the sheriff, "and which by the exercise of reasonable diligence he can find, he is guilty of no neglect of duty in not levying. Governor v. Campbell, 17 Ala. 566; Higdon v. Fields, 3 Ala. App. 324, 57 South. 58.

In actions like this the burden is on the plaintiff, not only to show default or negligence on the part of the sheriff, as for which the law imposes liability, but to show the extent of his damages, which is usually done by proving the value of the property liable to the process, which the sheriff negligently or wrongfully failed to subject to the mandate of the process. It is not sufficient to show the value of all the property owned by the defendant in process, but there must be proof as to the value of that which was liable to the process, and which, but for the negligence or fault of the sheriff, would or should have been subjected to the writ.

As said by Brickell, C. J., in the case of Smith v. Heineman, 118 Ala. 205, 206, 24 South. 364, 72 Am. St. Rep. 150, the presumption is that sworn public officers have performed their duty in this respect, and this presumption obtains until disproved by him who asserts the contrary.

In an action like this it is not sufficient, to authorize a judgment against the sheriff, to offer proof which tends to show negligence on the part of such officer in connection with the execution of the process; the plaintiff must show that the negligence or fault of the sheriff resulted in damages to the plaintiff, or proximately contributed thereto.

As we read this record, the trial court duly observed these rules of law, and submitted with proper instructions to the jury each of the questions which was in dispute.

The liability of the sheriff vel non was a question of fact for the jury, and the plaintiff was not entitled to the affirmative charge.

Where the sheriff levies the process upon certain property, the presumption obtains that such property is liable to the process. The presumption, however, is not conclusive; proof may show that such property is not in fact liable. Wilson v. Strobach, 59 Ala. 488; Wilson v. Brown, 58 Ala. 62, 29 Am. Rep. 727; Abbott, Downing & Co. v. Gillespy, 75 Ala. 180; Smith v. Heineman, 118 Ala. 202, 24 South. 364, 72 Am. St. Rep. 150. In Gillespy’s Case, supra, it is said:

“In actions óf this nature, the general rule as to damages, in the absence of statutory regulation, is that the amount to be recovered must be commensurate with the extent of the injury suffered by reason of the sheriff’s unintentional default or breach of duty. The actual injury sustained by the plaintiff is, in other words, the measure of his damages. 2 Greenl. Ev. § 599; Gay v. Burgess, 59 Ala. 575; Sedgwick on Dam. 634. Hence, it is plainly competent for the defendant to show that the plaintiff has not been damnified; that he has sustained no damage for which he can justly claim compensation.”

In Wilson v. Strobach, 59 Ala. 493, which was an action like this, it is said:

“The plaintiff in execution is entitled to compensation only for the damage actually sustained, and not the speculative damage. It is not to be supposed that he would have purchased property, or an interest in property, having no intrinsic value, with the view of future litigation.”

Applying these principles to the case in hand and the evidence as shown by this record, the plaintiff was not entitled to the affirmative charge as for any amount of damages.

The trial court instructed the jury fully, by written requested charges, at the instance of plaintiff and defendant, and by a lengthy oral charge, and then by an additional oral charge, after the jury had been out for some time. It is needless to treat these written charges separately, those given for the defendant or those refused to the plaintiff. It is saifficient to say that they have been carefully examined, and that no reversible error is found.

Charges I and E, given at the request of the defendant, were properly given. Not only did they assert correct propositions of law applicable to the ease, but they were rendered necessary to prevent certain charges, given at the request of the plaintiff, from misleading the jury.

Charges 26, 27, 29, and 30, given at the request of plaintiff, made the giving of I and E and other charges given at the request of defendant necessary.

The ease has been pending in the lower courts for more than ten years. There have been three or four trials in the meantime, and hence every phase of the ease has been thoroughly and repeatedly considered by counsel and the trial court; and after a careful examination of this record we find no reversible error.

It would do no good to discuss the propositions of law involved, nor the evidence. It is sufficient to say that they have ail been carefully examined by us, and that we find no reversible error.

Affirmed.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.  