Beck & Gregg Hardware Co. v. Knight

• Decision Date: 12 November 1904
• 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

November 12, 1904

Syllabus by the Court.

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.

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.

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 the 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. Dunbar, 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 exact question 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 fi. fa. in the hands 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). The 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 the 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 Commonwealth v. Fry, 4 W.Va. 721, and Shanklin v. Francis, 59 Mo.App. 179, where the suit was for failure to levy and return a writ of attachment. "The sheriff is liable to an action on the case, or an attachment for contempt of court, wherever it shall appear that he hath injured such party either by false return or by neglecting to levy on his property." To make the sheriff liable for the breach of duty it is necessary that it should be made to appear to the court that the plaintiff has been injured. Hackett v. Green, 32 Ga. 512; Currell v. Phillips, 18 Ga. 469; Hunter v. Phillips, 56 Ga. 634. While these were rulings as to final process, the principle would be even more strongly applicable to suits for failure to execute mesne process. In Colquitt v. Ivey, supra the case was against the sheriff for failing to serve original process, causing the action to be dismissed. It was alleged that the defendant who should have been served had afterward removed from the state, that he was solvent, and that the plaintiff lost a debt he would otherwise have collected. It was held that the petition as amended set out a cause of action. So, in Snell v. Mayo, 62 Ga. 743, the sheriff failed to arrest the body of the defendant, or to take bond, or to seize the goods. The plaintiff recovered a verdict in the bail-trover action, execution issued for the value of the goods, and there was a return of nulla bona. The sheriff was held liable for the damage. The necessity for the proof of actual damages, where the officer is sued for failing to return other than final process, was recognized in the early case of Crawford v. Andrews, 6 Ga. 247; the court saying: "We hold the law to be incontrovertibly settled that for an escape on mesne process no action lies unless some damage has been sustained, and that the plaintiff is only entitled to recover such damages as he can show he has sustained." If he must show it in his proof, he must aver it in his pleadings. The authorities are in great conflict on this subject, but the rulings in this state would indicate that, as the gist of such action is the injury done, the plaintiff cannot maintain a suit for...