Dixon v. Caskey , 18 Ala. 97 ( 1850 )

DARGAN, C. J.

No notice of the intended motion against the sheriff was served on his securities, nor did they become parties to the issue submitted to the jury, which was made up between the plaintiff and the sheriff alone. Therefore, if it be admitted that the plaintiff could move the court for judgment against the securities and the sheriff jointly, upon the verdict against the sheriff alone, still it is very clear that he must introduce the proper proof that they, whom he seeks to charge as the securities of the sheriff, are in fact such, and if he fails to make such proof, he is entitled to judgment against the sheriff alone. — Spence v. Rutlege et al. 11 Ala. 557; Reed v. The Plant. & Merch. Bank, 3 ib. 712; Garey v. Trost et al. 5 ib. 636. As it is incumbent on the plaintiff, when the securities are not made parties to the motion, to prove their suretyship to entitle himself to a judgment against them, it follows that they may contest that fact in any proper manner, and introduce proof to show that in fact they are not the sheriff’s securities; otherwise they would be bound by a proceeding to which they were -not parties.

The whole question, therefore, is, whether these defendants, whom the plaintiff sought to charge as securities, were such at the time the supposed default was committed ? ■ We are clearly of the opinion that they were not. True they were his securities at the time the execution was placed in the sheriff’s hands; but before the return day thereof one of the securities had applied to the county judge to be discharged from the bond; the judge had issued a citation to the sheriff in the manner directed by the act to giv'e a new bond with sureties; the sheriff had failed to execute the bond required and the judge had declared the office vacant. The judgment by which the office was declared vacant was rendered some time before the return day of the writ, and consequently the sheriff had not then made the default. The securities of a sheriff are liable for all his acts and omissions up to the time that his office is vacated, and if in the execution of process, whilst sheriff, he has done an act that creates a liability or duty to the plaintiff, the securities will continue liable for the performance of that duty; as if the sheriff whilst in office has collected money on afi.fa., and is removed before any demand has been made of it, they will continue liable, notwithstanding his removal from office; but if the sheriff has been removed before any default has been made, and before he has done any act under or by virtue of process, that will charge him and his securities, the mere omission to do, after the office is vacated, what otherwise would have been his duty, cannot charge his securities. This is the condition of the case before us. The sheriff had until three days before the return term of the writ to make return upon it. He was therefore in no default in not returning it at the time the office was declared vacant; his securities were not then bound for a failure to return, and consequently could not be afterwards charged for such a supposed default.

We can see no error in the record prejudicial to the plaintiff, and the judgment must be affirmed.