Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-17
SUPREME COURT DECISIONS
December Term - Nashville,
1870.
Joseph n. HeiskeIl, AttOrney.Gen'
eral and Reporter.

Joseph Ii. HeiskeII, Attorney-Gen-
eral and Reporter.
J. N Dunaway and securities in error VS.. VIM.
Collier.
JUDGMENT BY MoTIoE.-For insufficient Return.
DGndqes.-On motion against an officer for an
insufficient return, the 121z per cent. damages
| is to be computed on the amount of the execu-
| ton, aft r adding the interest thereon TO the
1 date of the Judgment by motion. Code S,osz
SAME-Ediper-R Release Of DdTnGges.-Issue of
| alias executions, or receip of portions of an
| execution, do not operate as waiver OF the
right to move against an oiHcer lot an lnsn a \:
| cient return on the original execution, nor as
| a release Of the statutory damages;
Case approved, Barnes VS.. White. Swan
| 449, and see Doyle VS.. Glenn, 4 Hum. 80, ETC.
FROM BEDFORD.
Writ of error to the Circuit Court of
Bedford, record here does not show what
Judge presided.
W. Fl. Wisener, for plaintiff in error.
Ed. Cooper, for defendant.
OPINION OF THE COURT.
Dunaway was Constable in Bedford
county, aud defendant in error placed in
his hands for collection an execution
against NJ. P. Gentry.
The plaintiff in error not having made
/ VI lAO CACOulAOh1 ShS w
PENDANT in error entered a motion for
Judgment against him in the Circuit Court
of Bedford County:
/. For failure to make due and proper
return of the execution.
2. For an insufficient return.
g. And also for failure to pay over
money collected by him upon said eXecu-
ton.
The return of the officer upon the ex-
ecution is simply "not satisfied" This
is clearly an insufficient return, and rem
dered the officer liable to a motion for
the default. Alias and pluries executions
were subsequently issued, and after their
issuance partial payments were made
thereon.
For failure TO return, or for an insult
ficient return of an execution, the Con-
stable is liable for the amount due upon
the execution and twelve and half per
cent damages. Code, 1884.
The amount due upon the execution,
which is the process issued TO enforce the
satisfaction of the judgment, is the
amount of the judgment for the debt,
with the interest computed upon it, from
the day of the rendition, until it is salts
: fed, and the costs.
When party is entitled to have a
judgment by motion against an officer,
for failure to make due and proper re-
turn, or for false or insufficient return
of an execution, the interest is computed
upon the principal judgment, from the
time of its rendition, and added thereto;
twelve and half per cent damages upon
the principal and interest are then added,
and judgment rendered for the aggregate
D sums. Code, sec. 1894.
D For the plaintiff in error it is insisted
that the plaintiff below having received
! money collected upon the execution has
i waived his right to motion against the
: officer for the insufficiency of his return
In 2 Humphreys, $50, it was held tina
the receiving, of the Sheriff, by plain
: tiff who had made a motion against hin
for false return, of the amount of mon
7 ey the Sheriff returned he had collected
q was waiver of his motion. But in
u later case, in Swan, 442, wherein mo
Is ton was made against a Sheriff and hi
securities for an insufficient return, it j
? held that if plaintiff issue an alias exc
/ CAillOl, dIu DolN VI lis JuOiS
le ment, it is no release of the Sheriff iron
; the balance of the judgment and the dam
3 ages given by statute, nor is it waive
1t of the plaintiffs motion against him t
enforce it.
], 1t is difficult to conceive upon wha
II principle the receiving by the plaintiff, u
e portion of the judgment due him, fror
ID his debtor or other party in default, shoul
&c be held TO operate as release of the de
II linuuent officer, in the case of a motto
N for a false or for an insufficient return.
ie 1t is also insisted by plaintiff in error
that for failure to pay over money co
sc lected, the officer is liable only for Ii
!, amount of the original Judgment and il
III terest thereon up to the time of the d,
ne fault made, and twelve and half pt
u cent. damages in lieu of interest.
u Section 5000 of the Code authorizes
le Judgment by motion before Justice {
g the Peace, against Sheriffs, Constable
VI and Coroners, for money collected b
them, with or without judgment or ex
cution, and provides expressly, that Il
Judgment shall be for the amount r
ceiYed, with interest thereon and dan
ages.
= BY section 3,592, the plaintiff is ent
90 tied TO recover twelve and half per cen
at damages, in all cases where damages on
he motion are allowed, where no specific di
nd ferent sum is given, on the principal al
interest due at the time of the renditi'
of the judgment. And by section 3,5
q of Code, the Circuit Court has cOncurre
a jurisdiction of all motions cognizable b
e Justice of the Peace.
ls: 1t follows, therefore, that an officer C,
10 lectng money upon an execution, q
y failing to pay it over as required by la
. is liable to the judgment creditor for
% amount of the judgment and the inter-
,02 thereon, to which will be added twel
- and half per cent. damages.
5s Let the Judgment of the court below
lie affirmed. DEADERICE, Judge.
81 A true copy.
BIS. J. G. FRAZER, Clerk.