Wilson v. Strobach , 59 Ala. 488 ( 1877 )

BRICKELL, C. J.—

It is settled by repeated decisions;of this court, that a sheriff may, by leave of the court, during the pendency of a suit or motion against him, amend his return or process, though the amendment if true, will relieve him from liability.—Niolin v. Hamner, 22 Ala. 578; Governor v. Bancroft, 16 Ala. 605; Leavitt v. Smith, 14 Ala. 279; Hodges v. Leaird, 10 Ala. 678. A return of a ministerial officer, is the officer’s answer to the mandate of the process, disclosing its execution, or the reason for not executing it. If it is of non-execution, it may properly embrace any legal excuse for the failure.—Crocker on Sheriffs, § 45. There was no error in the refusal of the City Court to strike out the part of the amended return, to which objection was made. It was essential to show the excuse, on which the sheriff relied for releasing the cotton, on which the levy of the attachment had been made. The sheriff in the subsequent progress of the cause, rightfully assumed the burthen of proving its truth, and the cause was decided on the effect of the evidence introduced by him.

The decisions of this court; declaring that’ the separate •creditor of any one partner, may take in execution that partner’s interest in all the tangible property of the partnership, have stood too long unquestioned, and been too frequently acted on, for us to indulge any inquiry into, or discussion of their correctness.— Winston v. Ewing, 1 Ala. 129; Moore & Co. v. Sample, 3 Ala. 319; Andrews v. Keith, 34 Ala. 722. The purchaser at the sheriff’s sale does not acquire an exclusive right to the possession of the partnership property—he becomes a tenant in common with the other partners, and it remains liable to the payment of the partnership debts, and liable to the adjustment of the accounts of the partners between themselves.—Andrews v. Keith, supra; Parsons on Part. 350-358; Colyer on Part. 822 et seq. All that can be sold, or acquired by the purchaser, is the interest of the co-partner, nothing more. That interest is dependent wholly on the state of the partnership affairs, and the sale eventuates in giving the purchaser nothing, if on a settlement of the partnership, the copartner is found without interest.

The statute under which the motion was made is section 3033 of the Revised Code, authorizing a summary remedy against a sheriff and his sureties, “ for failing to make the money on an execution, which by due diligence could have been made,” and authorizing a judgment “for the amount of the execution, interest, and ten per centum damages.” The issue found between the parties, was in effect on the truth of the averment that by due diligence, the money could have been made on the execution. The plaintiff to support the affirmative of thé issue, could offer any relevant evidence showing the defendant had, or was in possession of property subject to the execution, and its value. Or, the value of' property which had come to the possession of the sheriff by the levy of the attachment, which he had failed to sell. It was competent for the sheriff to show the defendant had no interest in such property, or the character, extent, and value of the interest he had, if any. Mason v. Watts, 7 Ala. 703; Leavitt v. Smith, ib. 175. It seems not to have been controverted that the only interest of the defendant in execution, in the cotton, from which it is supposed the money could have been made, was as a member of the firm of Collins & Ramsey. The cotton being the-property of thát partnership, all that could have been sold by the sheriff was the interest of the defendant as a partner, the extent of which we have stated. It was competent for the sheriff, to show that the partnership was insolvent, and a sale of the cotton, or of the defendant’s interest in it, would have been unproductive— that it would have resulted in yielding nothing to satisfy the execution. This was the effect of the evidence the court admitted, and we think properly. It was undisputed, and in the charge given, the court did not err. It is an unsafe practice, and one a sheriff should but seldom pursue, to release property on which he has levied, because he may be-satisfied the interest of the defendant, he has authority to-sell, is valueless. When there is no adverse claim, and he can not be involved in liability because of the sale or levy,, generally he should obey the mandate of the process. In a case like the present, it is only when he clearly shows the interest of which he could make sale, was without any real value, that he can justify his failure to make levy or sale. The plaintiff in execution, is entitled to compensation only for the damage actually sustained, and not the speculative-damage. It is not to be supposed that he would have purchased property, or an interest in property, having no. intrinsic value, with the view of future'litigation. If the appellant, the plaintiff'in the attachment and execution, controverted the solvency of the partnership, and really.believed the defendant had an interest subject to the payment of his debt, the more appropriate remedy, to ascertain that interest was by a bill in equity, which could have been filed without a sale under the execution. And it is probably matter off regret, that the legislature does not confine an individual creditor of a partner, to this remedy.

Let the judgment be affirmed.