Beck & Gregg Hardware Co v. Knight

• Decision Date: 12 November 1904
• Citation: 121 Ga. 287,48 S.E. 930
• Parties: BECK & GREGG HARDWARE CO. v. KNIGHT et al.
• Court: Georgia Supreme Court

48 S.E. 930

121 Ga. 287

BECK & GREGG HARDWARE CO.

v.KNIGHT et al.

Supreme Court of Georgia.

Nov. 12, 1904.

SHERIFF—ACTION ON BOND—EVIDENCE — BURDEN OF PROOF.

1. In a suit on a sheriff's bond for failure to execute or return final process the presumption is that the plaintiff has been damaged to an amount equal to the execution, and the burden is upon the defendants to mitigate the damages, or show that the plaintiff was not injured by the breach of official duty.

2. But in a suit for damages for failing to execute an attachment or other mesne process there is no such presumption, and the burden is upon the plaintiff, who must allege and prove actual damages in order to recover on the bond.

(Syllabus by the Court.)

Error from City Court of Macon; Robt Hodges, Judge.

Action by the Beck & Gregg Hardware Company against W. J. Knight and others. Judgment for defendants, and plaintiff brings error. Affirmed.

On May 18, 1903, the Beck & Gregg Hardware Company presented a petition to Judge Mitchell, judge of the superior court of Berrien county, reciting that the W. A. Parish Hardware Company was indebted to it $995 on open account; that on May 11, 1904, the Parish Company, for the purpose of avoiding the payment of this debt, had sold its stock of general merchandise, and had also concealed $600 in cash for the like purpose of avoiding the payment of their debts. This petition was verified, and thereupon an attachment under the Civil Code of 1895, § 4543, was issued, requiring the sheriff and constables to attach and seize so much of the property of the Parish Company as would make the principal, interest to date, future interest, and cost. The attachment was made returnable to the October term, 1903, of Berrien superior court. The petition in the present case against Knight, sheriff, and his sureties, was a suit on the sheriff's bond. It charged the facts above recited, and alleged that on May 18, 1903, petitioner, through its attorney, delivered to the sheriff the petition, affidavit bond, order, and attachment, and that the attorney directed the sheriff to levy the same upon the property described in the petition, to wit, the stock of general merchandise unlawfully sold by the Parish Company; that petitioner's attorney accompanied the sheriff to Sparks, in Berrien county, where the property was located, and again demanded that he should levy the attachment on the property; that on the same day he made a like demand on the deputy sheriff, and pointed out to the sheriff and his deputy the property described in the petition, and exhibited to them an inventory and description thereof. Notwithstanding this demand, Knight refused to levy the attachment, and refused to allow the deputy to levy the same, although requested so to do, refused to deliver and continues to hold all the papers, and fails and refuses either to execute the attachment or to return the same to the court to which it is returnable. The value of the property so pointed out was $1,200. By reason of said negligence and willful nonperformance of duty in failing to execute the process, and by reason of their failure to return the papers to the court to which they are made returnable, petitioner has been damaged $1,200, or other large sum. There has been a breach of the bond given, whereby Knight, sheriff, and the surety company are indebted upon said bond to petitioner in the sum of $1,200. By amendment petitioner alleged that the Parish Company was and still is indebted to petitioner the amount named in the attachment proceedings. A copy of the statutory bond is attached as an exhibit. The defendants demurred on the grounds that the petition set out no cause of action, and that it failed to allege that plaintiff had been damaged by the acts and doings therein charged. There were special grounds of demurrer, but they are immaterial, as the court did not sustain them or require any amendment, but dismissed the petition "on the ground that the allegations set out no cause of action against the defendants."

W. D. Buie, Davis & Turner, and Hardeman & Jones, for plaintiff in error.

Hall & Wimberly and J. E. Hall, for defendants in error.

LAMAR, J. This was an action on a sheriff's bond. The breach alleged is his failure to levy and return an attachment No special damages are set forth, and the question raised is whether there is a presumption that the plaintiffs have been injured to an amount equal to the debt named in the writ of attachment or, if not, whether they may maintain a suit for the recovery of nominal damages. At the outset it must be conceded that tbe authorities in England, the United States, and Georgia are in much conflict. See 2 Sutherland on Damages (3d Ed.) §§ 489-492; Crawford v. Word, 7 Ga. 445; Hunter v. Phillips, 56 Ga. 636; Hackett v. Green, 32 Ga. 512. In this state the question has usually been presented on rules against the officer, or on exceptions relating to the admission of evidence, or to a charge as to the measure of damages. Taylor v. Johnson, 17 Ga. 522; Wilkin v. American Freehold Co., 106 Ga. 183, 32 S. E. 135; Cowart v. Dimbar, 56 Ga. 417; Dobbs v. Justices, 17 Ga. 625; Neal v. Price, 11 Ga. 297. In none except Colquitt v. Ivey, 62 Ga. 168, was the sufficiency of the pleadings involved, and even that did not, in terms, pass upon the exactquestion now presented. However, in spite of the conflict and the want of a direct authority, all of the later cases now point one way.

1. A sheriff is bound to serve original process, and to execute and return mesne and final process. Both he and his sureties are liable to any person aggrieved by his misconduct in regard thereto. Colquitt v. Ivey, 62 Ga. 168. But these writs differ in kind and in effect. The pleadings, burden of proof, and presumptions likewise vary according as the suit is for a breach of duty as to one or the other. Where the plaintiff has established the validity of his debt, recovered a judgment, obtained a lien, and places the fl. fa. in the bands of the officer for levy and return, and the sheriff fails to comply with the mandate of the writ, there is not only a breach of duty, but the presumption arises that the plaintiff has been damaged the amount of the debt. Wheeler v. Thomas, 57 Ga. 162 (2). Tbe burden is then upon the sheriff. Reeves v. Parish, 80 Ga. 222, 4 S. E. 768; Mullings v. Bothwell, 29 Ga. 706; Smith v. Banks, 60 Ga. 642; French v. Kemp, 64 Ga. 750. Under the later cases he may shift the burden and rebut the presumption by proof of facts mitigating the plaintiff's damages, or by showing that the money could not have been collected on the fi. fa. by the exercise of reasonable diligence.

2. But where, as here, the process is mesne, the rule is different. The plaintiff has not even established the amount of his debt It does not follow that he will ever recover a judgment or that the property pointed out as subject to the attachment would ever be subjected to the payment of the debt. No presumption can arise in favor of the plaintiff, and none against the officer. In order, therefore, to set out a cause of action, or to recover at the trial, the plaintiff must aver enough to show that he has been actually injured. The ad damnum clause is not a sufficient allegation of damages. Watters v. Retail Clerks' Union, 120 Ga. 424, 47 S. E. 911. The failure to show how, why, and to what extent tbe plaintiff has been injured renders the petition demurrable. Riggs v. Thatcher, 1 Me. 69; State v. Fleming (Ind. Sup.) 24 N. E. 665; Bank of Hartford v. Waterman, 26 Conn. 325, 333; and especially ...