Mathis v. Carpenter

• Decision Date: 06 January 1892
• Citation: 10 So. 341,95 Ala. 156
• Parties: MATHIS v. CARPENTER, SHERIFF, ET AL.
• Court: Alabama Supreme Court

10 So. 341

95 Ala. 156

MATHIS v. CARPENTER, SHERIFF, ET AL.

Supreme Court of Alabama

January 6, 1892

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by C. H. Mathis against L. P. Carpenter, sheriff, and others. Judgment for defendants. Plaintiff appeals. Reversed.

Plaintiff demurred to defendants' second plea, on the ground that it presented no material issue, and that in the execution of a writ of attachment it is immaterial whether defendants are solvent or insolvent. This demurrer was overruled. The principal part of the controversy, as is shown in the opinion, is whether or not Porter was a duly-appointed deputy-sheriff. Plaintiff offered to introduce in evidence what purported to be an oath of office as deputy-sheriff taken by Porter before the clerk of the city court and filed with him. On defendants' objection, the court refused to allow the oath to be introduced in evidence, to which ruling plaintiff duly excepted. Plaintiff also offered to introduce in evidence two bonds of the sheriff, the first of which had been replaced by the second, as it had been declared insufficient; but, on defendants' objection to the introduction of the first of said bonds, the court refused to allow it to be introduced in evidence, and plaintiff duly excepted. On the examination of defendant in attachment, C Roberts, as a witness for defendants in this suit, Roberts was asked the following question: "Did you have any property at the time subject to the levy of said attachment?" Plaintiff objected to this question, and duly excepted to the court's overruling his objection. The witness said that he had no property at the time subject to the attachment, as the household furniture which was in the house rented by him belonged to his wife. The cause was submitted to the court, without the intervention of a jury.

Matthews & Whiteside, for appellant.

Caldwell & Johnston, for appellees.

COLEMAN J.

Appellant as plaintiff, moved for a summary judgment against the defendant Carpenter, as sheriff, and his sureties, for failing to levy an attachment. The averments of the motion are that the writ of attachment was placed in the hands of the sheriff, property pointed out to him as belonging to the defendant in attachment, and that the sheriff was duly indemnified to make the levy. The defendants' pleas were three in number: (1) That the writ was not received by him or any one authorized to receive it; (2) that defendant had no property subject to levy under the attachment; and (3) the same could not have been executed by the exercise of due diligence.

The proof is ample to show that the sheriff, Carpenter, was liable for the acts of C. F. Porter as his deputy. The testimony of the clerk of the court showed that Porter acted as the deputy-sheriff, in the presence of the sheriff; that he was in the habit of receiving all kinds of process; that in fact he receipted for executions in the name of the sheriff, by him as deputy, collected money on execution, made due return of the collections in the name of the sheriff, and was generally understood to be the deputy-sheriff. To the same effect is the testimony of certain attorneys who practiced in the court; and in regard to the particular writ of attachment, upon inquiry being made of Caldwell, whom the sheriff acknowledges to have been his regular deputy-sheriff, was referred by him to Porter as the officer who had the writ for execution. There is other evidence, also sufficient to satisfactorily show that Porter was recognized by the sheriff as his deputy.

The pleas are framed jointly for all the defendants, and there is no plea which...