Rogers v. Carroll , 111 Ala. 610 ( 1895 )

McCLELLAN, J.

On all the evidence, Beeves was a general deputy of Carroll, the sheriff; he was a deputy ■sheriff, as distinguished from a specially deputized agent :of the sheriff for a particular purpose. His powers,generally speaking, were those of the sheriff himself, and his acts were those of the sheriff ;he had the same power to receive and to execute all ordinary process as had the sheriff, and his acts or omissions under or in respect of process were the acts or omissions of the sheriff. In legal contemplation he and the sheriff were one officer, so far as third persons are concerned, as to all questions of civil responsibility. Standing thus in the stead of the sheriff and being the sheriff for all practical purposes affecting third persons, the public have a right to assumethat he has all the powers incident to the office he holds and to require of him the exercise of those powers in its behalf, and to hold the sheriff liable civilly for his dufaiilts. This is a responsibility which the law not only casts upon the sheriff, but which it also' forbids the sheriff to cast off or to attempt to shield himself from by limiting the powers of his general deputy. For it was long ago held that though the sheriff may appoint persons to do particular acts only, and though he may remove an under-sheriff or general deputy at his pleasure, yet he cannot limit or abridge the powers of such under-sheriff or deputy while he continues in office ; and a case arising on a covenant of an under-sheriff not to execute any process over twenty pounds without the sheriff’s leave, the court held the covenant void “as being against law and justice ; for since being made under-sheriff he is liable by law to execute all process, he could, no more than the sheriff himself, covenant not to execute powers without another’s special warrant; for that is to deny or delay justice.” — Norton v. Semmes, Hobart 13. And in another old case it was declared that “the office of under-sheriff is an entire thing, and can neither be given nor taken away in parcels, and that public, policy requires that a suitor has a right to expect of an officer the full exercise of his official powers, and must not be met with a secret understanding between the subordinate and the superior by which that exercise is forbidden.” — Chamberlain v. Goldsmith, 2 Brownl. 281. The later authorities are all in line with these to the establishment of the proposition that the sheriff has no power to limit the authority of a general deputy, and that all such efforts are abortive and all understandings between them to that effect are void. — Murfree on Sheriffs, §§ 18, 61, 76; Crocker on Sheriffs, § 13; 5 Am. & Eng. Encyc. of law, pp. 626-628, 634; Abrecht v. Long, 27 Minn. 81; Guarantee Trust & Safe Deposit Co. v. Buddington, 23 Fla. 514.

The wisdom of this doctrine is strikingly illustrated in the present case where a suitor, finding a general deputy in and in charge of the sheriff’s office, called on him to execute a process which was then placed in his hands, and, the general deputy having failed to execute the process, the sheriff now pleads,'in defense of the motion made against him, that this general deputy had no power to execute any process except such as should be given into his hands by himself, the sheriff, or by a certain other general deputy.

The abstract shows that a summons .and complaint were placed in the hands of Reeves, for services on the defendant. We assume this was a regular summons issued by the clerk of the court, and that the transcript shows these facts, else the statement of the abstract could not be true, as it must be taken to be in the absence of a counter abstract. And it is not material that the summons was handed to Reeves by the attorney for the plaintiff instead of by the clerk ; it was none the less for this a valid summons in the hands of Reeves for service upon the defendant. Nor can there be anything in the suggestion that Reeves was without authority to receive the writ; he had the same authority and was under the same duty to receive it as was vested in and rested on the sheriff himself. The defendant in the writ lived in the same town and within one hundred and fifty yards of, and carried on a mercantile business just across the street or square from the sheriff’s office,where the summons was delivered to Reeves. He made some effort to find the defendant the day the writ came to his hands, but failing to do so kept the writ without further effort, though he had more than two weeks afterwards before the return day in which to have served it. He seems to have been under the impression that the summons could not be served after the first day it was in. his hands because there was less than twenty days to intervene before the return term of the court; but this was a mistake of law which can neither excuse him nor protect the sheriff. — Code, §§ 2661-63.

We are of the opinion that on the uncontroverted evidence the sheriff was liable to the statutory penalty for failing to execute this summons ; and the court should have given the affirmative charge for the movant as requested. See Southern Bell Tel. & Tel. Co. v. Francis, 109 Ala. 224.

Reversed and remanded.