Branch v. Riley ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

The Sheriff has no right, at his pleasure, to withdraw for any purpose a fi. fa. which has been levied, and after claim intex'poscd, returned into Court.

It would be a bad rule, however, which held, that after a levy and claim in our State, no other levy can be made of the same execution, until the claim is tried and determined. There might be.very good reasons why another levy should be made, even where the first had been upon property sufficient to pay the debt; so that, in our opinion, the plaintiff is not, and should not be, deprived of the privilege of withdrawing the fi. fa. and of having another levy made upon it, should the purposes of justice render this proper. Yet, this privilege should not be exercised capriciously, or so as to harrass and oppress the defendant.

To prevent this and advance justice, the right so to withdraw the execution after claim interposed and returned, should be submitted to the sound discretion of the Coux't before whom the case is pending. The fi. fa. should therefore ■ be withdrawn by leave and order of the Court, after a satisfactory showing made by the plaintiff. And if the latter desire to withdraw the execution and direct another levy, he should apply to the Court for such leave; he has no right to require the Sheriff to do this for him; and the Sheriff, having ■ no right, of his own volition, to withdraw the process, he ean- ' not properly be held in contempt for not doing so.

Let the judgment be reversed.