Sutton v. Griner , 22 Ga. App. 307 ( 1918 )

Wade, C. J.

1. While, in this suit on the bond of a deputy sheriff for failure to execute final process, the presumption was that the plaintiffs were damaged, and the burden was upon the defendants to mitigate the damages or show that the plaintiffs were not injured by the breach of official duty, the burden might be shifted and the presumption be rebutted “by proof of facts mitigating the plaintiff’s damages, or by showing that,the money could not have been collected on the fi.. fa. by the exercise- of reasonable diligence.” Beck & Gregg Co. v. Knight, 121 Ga. 287, 290 (48 S. E. 930, 3 L. R. A. (N. S.) 420, 2 Ann. Cas. 9), and cases there cited.

2. In a rule against a sheriff for failure to levy executions on property • shown to have been in the possession of the defendant, and so likewise in a suit against him and his bondsmen for a like dereliction of duty, it may be shown by way of defense, as rebutting the presumption of injury sustained by the plaintiff, “that the property in the possession of the defendant .belonged to some one else.” Cowart, v. Dunbar, 56 Ga. 418. It is likewise “competent for a sheriff, in defense to a rule brought against Mm for neglect, to show that the property levied upon was not subject to the execution.” Brannon v. Barnes, 111 Ga. 850 (2) (36 S. E. 689). See also Wilkin v. American Freehold &c. Co., 106 Ga. 182 (32 S. E. 135); Smith v. West, 134 Ga. 11, 13 (67 S. E. 405).

Decided May 15, 1918.

Action upon bond; from Berrien superior court—Judge Thomas. September 10, 1917.

Hendricks, Mills & Hendricks, for plaintiffs. W. D. Buie, J.,0. Smith, G. A. Christian, for defendants.

4. In the light/of the entire record, there- is not such merit in any of the special assignments of error as to require a reversal; and the trial judge did not err in overruling the motion for a new trial. ’

Judgment affirmed.

Jenkins and Luke, JJ., concur.