Birmingham Dry Goods Co. v. Bledsoe , 117 Ala. 495 ( 1897 )

HARALSON, J.

The duty of a sheriff is to execute and return with due diligence the process and orders of the courts of record of this State. — Code of 1886, § 810; Code of 1896, § 3739. For a failure to execute a summons, attachment or other mesne process, which, by due diligence he could have executed, he is liable to a summary judgment, for a sum not less than fifty nor more than five hundred dollars. — Code of 1886, § 3106 ; Code of 1896, § 3774. He is bound to make a reasonable effort to serve a summons, or execute any other process placed in his hands by the court; and press of business is no excuse for his -failure to do so. His business is, to provide himself with a sufficient number of competent deputies to enable him to execute the mandates of the court, within the time required by law.—Hallett v. Lee, 3 Ala. 28; 22 Am. & Eng. Encyc. of Law, 533 ; Murfree on Sheriffs, § 108. Subpoenas issued during term time, must be executed by personal service (Code of 1886, § 2774; Code of 1896, § 1805) ; and in order to do this, he must go, if necessary, to the residence of the party to be served. — Murfree on Sheriffs, § 120.

The 1st charge requested by movant was properly refused. It was the general charge in favor of movant,— improper, under the pleadings and evidence, since the evidence as to whether the defendant exercised due diligence in serving the subpoena was in conflict. It was subject to the further vice of leaving the jury unlimited discretion in assessing the damages, in case they found for movant, instead of confining them within the limits prescribed by the statute, — not less than $50 nor more than $500.

The 2d charge was also properly refused. It ignores the evidence of defendant tending to show his excuse for not serving the writ on the witness, the time when he returned it and his excuse for so doing. His evidence as to this matter was admitted without objection on the part of movant.

Nor was there error in refusing the 3d charge of movant. The evidence tended to show that the subpoena was returned on the 14th, instead of the 13th, and that before he returned it, plaintiff’s counsel notified him that the case, in which the witness was desired, had been disposed of. No objection was interposed to this evidence ; competent, certainly, to be considered to show diligence, in the absence of objection to its competency. The real question was, under the pleadings, diligence on the part of the sheriff in the performance of his duty in executing the writ, or the want of it. As we have said, there was no objection to the defendant’s evidence offered and introduced to show his diligence, and no charge asked questioned the sufficiency of the evidence in this respect. With all the evidence introduced without objection to show diligence or the lack of it, that question was properly submitted, as appears, to the jury.

Affirmed.