Spengler v. O'Shea ( 1887 )

Arnold, J.,

delivered the opinion of the Court.

There is sufficient evidence in the record to show that the judgment in the attachment suit was valid, and it was error to •exclude the writ of attachment and the return thereon from the jury-

It appears that the writ of attachment did reach the sheriff’s ■office and the circuit court. It was the duty of the constable, under Sec. 2426 of the Code, after he had executed the writ, to hand it, with his return thereon, to the sheriff, and in the absence of proof on the subject, we must -presume that this was done, and that the writ was returned by the sheriff, and not by the ■constable, to the circuit clerk.

The writ having been levied by the constable on land alone, there was no action for the sheriff to take under it, and it was his duty to return it to the circuit clerk, as required by Sec. 2426 of the Code. It would have been proper for the sheriff to have endorsed on the writ the fact, and the date of its receipt by him from the constable; but his failure to do so did not affect the levy made, nor deprive the court of jurisdiction.

This disposes of the errors assigned, and consequently of the questions that can be properly considered by us in the case.

Reversed and remanded.