Gary v. Frost , 10 Ala. 852 ( 1846 )

GOLDTHWAITE, J.

In order to determine whether there is or is not a case for equitable relief made by this bill, it is necessary to ascertain, so far as we can, the intention of the Legislature in giving the summary remedy against sheriffs for omitting to make money on executions when that can be made by the use of due diligence. [Digest, 218, § 85.]

There are no terms used from which it can be inferred the recovery is given as a mere penalty, although the injured party is allowed 10 per cent, on the amount of his execution in that aspect. The words of the enactment seem to give the remedy only when the neglect has extended to the whole sum of the execution, yet it has always been construed to warrant a recovery equivalent to the actual injury sustained, even when the property omitted to be seized or sold was of less value than called for by the execution. [Gary v. Hathaway, 6 Ala. Rep. 161.] This construction would seem to indicate that the remedy is, in most, if not in all respects given as a substitute for the action of debt on the official bond. But if we may assume this to be the correct exposition, it advances us but little in the present inquiry, as there is much intrinsic difficulty arising out of the complication of. interests when several execution creditors are pursuing the sheriff for the same neglect, which operates as a common injury to all. The difficulty was felt in Bell v. King, 8 Porter, 147, where we held the sheriff was not excused from negligence in relation to a junior execution, for the reason that he at the same time had other senior executions sufficient to exhaust the whole property of the debtor. But certainly there is no prill-ciple of the common -law which will prevent the sheriff from mitigating the damages in a suit for neglect by showing that he has already been made liable, and has satisfied others entitled to a priority of satisfaction out of the property. To hold the contrary, would be a harsh and severe rule, giving to the junior creditor a compensation for the neglect which he never could have reached, if the utmost diligence had been pursued. We speak not now of the consequences which might arise if the junior creditor, should after the first default, take out a new execution. It is possible, that by this he might obtain the right of prior satisfaction, against the same goods of the debtor, inasmuch as the property would remain unchanged; but that is not this case, and therefore it is unnecessary now to say what would, in that event, be the relative rights and duties of the parties and officer. In the present case, all the creditors were entitled to a pro rata division of the money produced from the sale of the debtor’s property, and if the sheriff is not responsible to each of the creditors, as for a penalty, in our judgment he can only be liable to the whole number, for the value of the property omitted to be sold, although he may be unable, from his peculiar condition, to defend the rule against any one successfully. The case of Chandler v. Crawford, 7 Ala. R. 507, relied on by the defendant’s counsel, was based upon the default in not returning an execution, in which the recovery is allowed as a mere penalty. It has for this reason no application to the present case. As the sheriff was in a condition in which he could not defend the suit of any one of the creditors, it follows, as all their judgments are based on the same neglect, and because he can be made liable only to the extent of the property, that he is entitled to relief.

2. But in ascertaining the extent of the relief, the facts ascertained already, by the judgments against him, cannot be disturbed. Thus it appears, the creditors, Frost & Dickerson, have obtained a judgment for something over $800, which could not have been unless the jury considered the sheriff as responsible for property to that amount. As an account will be necessary in the court below, this judgment will be assumed as ascertaining the*true value, unless the creditors shall elect to go into an examination of that matter anew, in such manner as the chancellor shall direct.

In reference to the allegations of the bill, we think they are substantially good, and it is not the course of practice in this State, to bring money into court; but conceding there are cases in which it would yet be proper to deposit the fund in court, we think the one before us is not of that description, as the parties between whom the fund is divisible, have already judgments for a larger sum than can be equitably coming to them, if the allegations of the bill are true.

On the whole, we think there is a substantial equity disclosed by the bill; the decree of the chancellor is therefore reversed and the cause remanded for further proceedings, not inconsistent with this opinion.