Smith v. Perry

• Decision Date: 01 January 1857
• Citation: 18 Tex. 510
• Parties: ASA SMITH AND OTHERS v. WILLIAM B. PERRY AND ANOTHER.
• Court: Texas Supreme Court

18 Tex. 510

ASA SMITH AND OTHERS

v.WILLIAM B. PERRY AND ANOTHER.

Supreme Court of Texas.

1857.

The statute provides that for failure to return an execution on the day and at the place the same shall be made returnable, the sheriff shall be liable to pay to the plaintiff in execution the full amount of the debt, interest and costs.

The construction which these cases (previous decisions referred to) have put upon the statute, and which we see no reason to depart from in the present case, is, that a sheriff who fails to return an execution as directed by law, is prima facie, liable to the plaintiff in execution for the full amount of the debt, interest and costs; but the officer may avoid such liability by proof showing a reasonable excuse for his failure to return the execution, or that the plaintiff has sustained no injury. 4 Tex. 356, 175;19 Tex. 111;28 Tex. 478.

The burden of proof is on the officer; and in a case like the present (where the ground on which it was contended that the plaintiff had sustained no injury, was that the defendant in execution had no property), he may be held liable, at all events, for nominal damages and costs, as in the case of an ordinary action against him. In Hamilton v. Ward we held otherwise; but there the debt had been fully paid before the proceeding against the sheriff had commenced. There was not even an apparent right of action at the time of instituting the proceeding; which distinguishes that from the present case.

In a suit or motion against a sheriff and his sureties, for failure to return an execution, if the defendants allege and prove that the defendant in execution was insolvent and had no property in that or any other county, out of which any part of the money could be made, the plaintiffs can only recover nominal damages.

Error from Colorado. Tried below before the Hon. Nelson H. Munger.

Suit by defendants in error, William B. and George L. Perry, against plaintiffs in error, Asa Smith and the sureties on his bond, for failure of said Smith, as sheriff of Colorado county, to return two executions in favor of plaintiffs, one against D. H. Rhine, and the other against A. C. Crawford. The judgments were recovered at the spring term, 1853, and the executions were issued returnable to the next term. This suit was commenced on the 29th of November, 1854; and the defense was that Rhine and Crawford were both utterly insolvent, and had no property in that or any other county, out of which any part of the money could have been made. There was no exception to this defense. A jury was waived. There was ample evidence to sustain the defense; but the court gave judgment for the plaintiffs.

J. H. Robson, for plaintiffs in error.

G. W. Smith, for defendants in error.

WHEELER, J.

In the rendition of judgment, the court evidently proceeded on the ground that the insolvency of the defendants in execution, and the fact that the plaintiffs had sustained no injury by reason of the default of the sheriff, did not affect their right under the statute (Hart. Dig. art. 1346) to have judgment against him and his sureties for the full amount of the debt, interest and costs. The judgment can only be supported on the ground that the statute fixes absolutely the measure of the plaintiffs' damage; and it makes no difference that they have not been injured by the default of the sheriff; they are entitled to their judgment irrespective of the question of injury. If this view of the law be correct, it would make no difference, though after the issuance of the execution, the debt had been paid. The principle upon which the liability of the officer is made to rest, would apply as well to that case as the present. The contrary, however, was decided in the case of Hamilton v. Ward, 4 Tex. 356. The primary object of the statute was held to be to give compensation to the party for the injury occasioned by the default of the officer; and where no injury had been sustained, it was held there could be no right to compensation. Accordingly, it appearing that after the default the plaintiff had been paid his debt, it was decided that he could not proceed against the sheriff for failing to return the execution. And, in Underwood v. Russell, Id. 175, it was held that although the statute did not, in express terms, admit of any excuse for the default of the officer, yet it must be intended that a reasonable excuse would be heard; and such excuse was there held to acquit the sheriff of liability. The construction which these cases have put upon the statute, and which we see no cause to depart from in the present case, is, that a sheriff who fails to return an execution as directed by law, is, prima facie, liable to the plaintiff in execution for the full...