O'Connor Min. & Mfg. Co. v. Dickson

• Decision Date: 28 May 1896
• Parties: O'CONNOR MIN. & MANUF'G CO. v. DICKSON, SHERIFF, ET AL.
• Court: Alabama Supreme Court

20 So. 413

112 Ala. 304

O'CONNOR MIN. & MANUF'G CO. v. DICKSON, SHERIFF, ET AL.

Supreme Court of Alabama

May 28, 1896

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Motion in execution proceedings by the O'Connor Mining &amp Manufacturing Company against R. S. Dickson, sheriff, and sureties on his bond, for summary judgment. From a judgment for defendants, plaintiff appeals. Reversed.

The proceedings in this case were had upon a motion made by the appellant for a summary judgment against the appellee R. S Dickson and the sureties on his official bond as sheriff, for the failure of said Dickson to indorse on an execution delivered to him the true date of its delivery. The defendant pleaded the general issue. Upon the trial of the cause, after the introduction of the sheriff's bond, which was executed by the persons proceeded against, and conditioned as required by law, the movant introduced an execution which was issued by the clerk of the circuit court of Etowah county on April 25, 1894, in favor of the O'Connor Mining &amp Manufacturing Company, against the Coosa Furnace Company, a body corporate, for a certain sum named therein, and the costs of suit. This execution was in legal form, and there was attached to the execution the following direction "Mr. Dickson-Dear Sir: Sign the receipt of execution and sign this levy, and have it published at once, and send me a copy of the newspaper in which you make publication, the first issue of the paper containing advertisement of land, and oblige, yours, & c., Geo D. Motley, Gadsden, Alabama." On this execution, which was introduced in evidence, there was no indorsement of the date of delivery to the sheriff. It was shown by the evidence of the plaintiff that George D. Motley, Esq., attorney for the plaintiff in execution, delivered the said execution to Judge R. R. Savage, and asked him to hand it to the sheriff; and Judge Savage testified that he handed it to the sheriff, as requested by Mr. Motley. The defendant R. S. Dickson, as witness in his own behalf, testified that he did not recollect having received the execution from Judge Savage, and that he found the execution in October, 1894, in his office. He further testified that he received a letter about the execution in due course of mail, which letter was mailed at Gadsden, Ala., and signed by George D. Motley, as attorney for plaintiff. After stating that he had made diligent search in his office for the letter, in the places where official communications and papers were kept, and that he could not find it, the witness was asked what were the contents of the letter. The movant objected to this question, on the ground that no execution of the letter had been proven. The court overruled the objection, to which ruling the movant duly excepted; and the witness answered as follows: "The letter stated he had left an execution in care of Judge Savage for me, and that he had directed its levy and advertisement in paper, and the paper was to be sent to him, and that he had not received the paper, and he asked the execution to be returned." Thereupon the movant moved to exclude this letter, upon the ground that there had been no proof of its execution. The court overruled this motion, and the movant duly excepted. The witness further testified that he never received but this one letter from Mr. Motley, which was some time in October, 1894; that, in response to a letter from the clerk of the circuit court of Etowah county, he returned the execution to the circuit court clerk. The testimony of J. M. Webb, who was the deputy of the sheriff R. S. Dickson, was substantially the same as the testimony of Dickson. The movant introduced in evidence the letter written by the clerk of the circuit court of Etowah county to R. S. Dickson, in which the sheriff was asked to return the execution in question at once; and it was shown that, in response to this request, the said execution was sent at once by R. S. Dickson to the said clerk. George D. Motley, Esq., testified that he never wrote to Dickson to return said execution.

Upon the introduction of all the evidence, the movant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: "(1) "The court charges the jury that, although they believe the sheriff received a letter purporting to be written by attorney for plaintiff in October, they must go further and find that the sheriff obeyed that letter, and sent the execution according to the mandate thereof, to be a defense to this motion." (2) "The court charges the jury that if they believe from all the evidence that if the execution was left with Judge Savage by plaintiff's attorney, to be given to the sheriff, and that Judge Savage gave the execution to the sheriff, then the plaintiff is entitled to recover a judgment against defendants for 10 per cent. of the face of the execution." (3) "The court charges the jury that if they believe from all the evidence that if the execution was left by plaintiff's attorney with Judge Savage, to deliver to the sheriff, and that Judge Savage gave the execution to the sheriff, then it was a delivery to him, under due course of law." The court, at the request of the defendants, gave to the jury the following written charges, and to the giving of each of them the movant separately excepted: (1) "The sheriff is presumed to do his duty, and the burden of proof is on the plaintiff to show to the jury by a preponderance of evidence that he did not do so before the jury can find a verdict for plaintiff." (2) "The court charges the jury that the burden is on the plaintiff to show that Dickson received the execution before the time for returning...