(76 South. 466)

#### HIGDON et al. v. FIELDS.

(6 Div. 28.)

(Court of Appeals of Alabama.

June 12, 1917.)

1. Sheriffs and Constables <&wkey;137(l) — Failure of Sheriff to Levy Attachment —Liability—Pleading.

In an action against a sheriff for failure to levy an attachment, the complaint, alleging that the sheriff could have levied the writ on defendant’s property, and that, while the attachment was in the hands of the sheriff, defendant in the cause in which the attachment was issued owned property in the county subject to execution, on which the sheriff, by reasonable care, could have levied the attachment, and out of the sale of which, under the attachment, tho sheriff could have made tho demand of plaintiff in the cause, or a substantial part, was not demurrable.

2. Sheriffs and Constables <&wkey;106 — Duty as to Executions — Statute.

By Code 1907, § 4098, it is the duty of a sheriff to execute with diligence all executions which may come into his hands, and to make returns promptly, and the sheriff and his bondsmen are liable for any negligent failure to perform such duty.

3.. Sheriffs and Constables <&wkey;106 — Duty to Levy Writ of Attachment — Acquittance.

For the sheriff to have acquitted himself of his duty to levy writ of attachment in an action, he should have levied the writ on real estate standing in the name of defendant in the suit in which the attachment was issued, which a third person claimed to have bought, when the fact would have' been developed that the purchaser of the property from defendant still owed a balance on tho purchase money, and the sheriff’s writ of garnishment could have issued against the debt, thus securing to plaintiff in. the action the amount due him.

4. Sheriffs and Constables &wkey;*138(l) — Failure to Levy Attachment — Burden of Proof.

In an action against a sheriff for failure to levy writ of attachment, it having been shown that the execution debtor owned specific property subject to levy and sale, and the value of the property having been proved, the burden was. on the sheriff to prove some excuse valid in law for failure to make the money.

5. Sheriffs and Constables &wkey;>138(3) — Failure to Levy Writ of Attachment— Sufficiency of Evidence.

In an action against a sheriff for failure to levy writ of attachment, evidence *held*sufficient to sustain judgment for plaintiff.

Appeal from Circuit Court, Jefferson County; E. C. Crow, Ju'dge.

Action by W. M. Fields against E. L. Higdon and others for damages for failure to-levy a writ of attachment. From a judgment for plaintiff, defendants appeal.

Affirmed.

W. K. Terry, of Birmingham, for appellants. Harsh, Harsh & Harsh, of Birmingham, for appellee.

SAMFORD, J.

[1] On a former appeal of this case (Higdon et al. v. Fields, 3 Ala. App. 322, 57 South. 58) the judgment of the lower *183court was reversed, because tbe complaint failed to allege tbat the defendant in the writ owned or was in possession of tbe property legally subject to be levied on, and tbat tbe defendant would bave found it if be bad been duly diligent. Upon the last trial, tbe plaintiff amended bis complaint, by adding tbe following:

> “And plaintiff avers tbat, while said attachment was in the bands of said sheriff for levy, the defendant in said cause in which said attachment was issued, viz., said- L. T. Kelly, owned property in said Jefferson county, Alabama, subject to execution, and upon which said sheriff, by the exercise of reasonable care, could have levied said attachment, and out of the sale of which, under said attachment, said sheriff could bave made the demand of plaintiff in said cause in which said attachment was issued, or a substantial part thereof.”

This amendment sufficiently meets the requirements as set out in tbe case of Higdon et al. v. Fields, supra, and tbe trial court 'did not commit error in overruling tbe demurrer to tbe complaint as amended.

[2] Tbe second assignment of error is.based on tbe action of tbe trial court in rendering judgment in favor of plaintiff and against defendant. It is tbe.duty of a sheriff to execute with diligence all executions which may come into bis bands as such sheriff, and to make returns thereon promptly, and tbe sheriff and his bondsmen are liable for any negligent failure to perform such duty. Section 4098, Code 1907; Smith-Stewart Co. v. Castellow, 88 Ala. 355, 6 South. 750, and cases there cited. The rule as stated in Smith-Stewart Co. v. Castellow, 88 Ala. 855, 6 South. 750, is:

> “In tbe first instance, the plaintiff in such cases must show pilma facie that the execution debtor owned specific property, and its value, which was capable of being subjected to levy and sale. It is sufficient, ordinarily, to show the property to be in possession of the debtor; such possession being prima facie evidence of ownership.”

Tbe evidence in this case shows tbat, on December 5th, plaintiff sued out an attachment against the original defendant, and, on tbe 6th of December, put into tbe bands of tbe sheriff of Jefferson county (tbe defendant) or bis deputy tbe writ of attachment. This writ was returned on December 81, 1908, marked “No property found.” It also appears from tbe evidence tbat tbe defendant Kelly bad several pieces of property standing in bis name and located in Jefferson county. It appears tbat this property has been assessed to Kelly for taxes; tbat tbe title to it was in his name; tbat be bad been in possession of it, claiming it as bis own; tbat some time in October Kelly bad contracted to sell this property to one Hinze, and at tbe time of making tbe contract Hinze paid $50 of the purchase money and bad gone into tbe possession of tbe property. Thereupon Kelly left tbe state of Alabama, going to tbe state of Oklahoma, where be now resides, and has resided since tbe original contract of sale was made. Tbe balance of the purchase money was to be paid when Kelly got in a position, or it was found tbat Kelly bad tbe right, to make a good deed to tbe property to Hinze. This fact was not ascertained until December 15th, some six or sever), days after tbe writ of attachment bad gone into tbe. bands of tbe defendant, and during this time tbe title to tbe property remained in Kelly, tbe defehdant in tbe attachment proceedings. Tbe deputy sheriff who bad this writ in bis possession for levy testified that be bad long known the property to be Kelly’s and there was testimony tbat it bad been openly and notoriously owned by Kelly for a great many years.

[3] It is true tbat Brent, tbe deputy sheriff, testified tbat Hinze told him tbat be bad bought tbe property; but tbat should not have been the extent of tbe investigation made by tbe sheriff in order to diligently execute a writ which had been placed in bis bands for execution. It also appears from tbe evidence tbat tbe sheriff bad a description of this identical property. In order for the sheriff to bave acquitted himself of tbe duty incumbent upon him, be should bave levied tbe writ of attachment upon this property, which was standing in tbe name of tbe defendant in tbe original suit. Then tbe fact would have been developed tbat Hinze still owed a balance on tbe purchase money, and tbe sheriff’s writ of garnishment could have issued against tbat debt, thereby securing to the plaintiff in tbe original suit tbe .amount due to him.

[4] It having been shown in this case tbat tbe execution debtor, Kelly, owned specific property, and tbe value of tbe property having been proved, and tbat it was subject to levy and sale, tbe burden rests upon tbe sheriff to prove some excuse which would be valid in law, for failing to make the money. Abbott v. Gillespy, 75 Ala. 180; Governor v. Campbell, 17 Ala. 566; Leavitt v. Smith, 7 Ala. 175.

Under tbe evidence in this case, we are of tbe opinion that tbe defendant did not acquit himself of this burden, and therefore tbe trial court was justified in finding a verdict for tbe plaintiff and against tbe defendant. Tbe fact tbat Kelly bad lived on this land, and might bave .claimed it as exempt to him under tbe Constitution and laws of this state, cannot avail tbe defendant in this action, for the reason tbat the evidence shows tbat Kelly bad abandoned whatever homestead rights be bad in this property and ceased to be a citizen of tbe state of Alabama.

Tbe contention of tbe defendant that' there had been a compromise of tbe various suits pending against him in favor of tbe plaintiff is not tenable, for tbe reason tbat it is not shown from tbe evidence, as set out in tbe transcript, tbat the agreement of compromise was ever fully consummated. It is true an effort was made on tbe part of Higdon to bring about this compromise, and there is evidence tending to show tbat the plaintiff *184at one time negotiated with Higdon looking to a compromise; - but the evidence fails to show that the compromise agreement was ever completed.

[5] The third assignment of error challenges the judgment of the court in overruling the defendant’s motion for a new trial. Eroln what has been said in the discussion of -assignment of error No. 2, it follows that the trial court did not commit error in refusing to grant a new trial.

We find no error in the record, and the judgment of the lower court is affirmed.

Affirmed.