Armstrong v. Apple ( 1865 )

Shackelford, J.,

delivered the opinion of the Court.

On the 10th of July, 1852, the plaintiff in error obtained a judgment against W. R. Sizemore, before Thomas Cossity, for $18.84, and costs. On the 7th of September, 1852, an execution issued from, said judgment, and went into the hands of W. P. Witcher, Deputy Sheriff of Jackson County. On the 10th of July, 1854, the plaintiff in error served notice on the defendant in error, Apple, the Sheriff of the county, that they would move for judgment against him and his securities, for the failure to return the execution. The motion was made before a Justice of the County. The plaintiff and defendants in error appeared before the justice, and a judgment rendered in favor of plaintiffs in error; from which an appeal was taken to the Circuit Court, where, after various continuances, a trial was had, and the motion dismissed by the Circuit Judge; from which an appeal was taken to this Court. It appears, from the proof, the execution went into the hands of Witcher, the regular Deputy, and was never returned. The Sheriff and his securities are regularly before the Court. The Circuit Judge dismissed the motion, for the reason, the plaintiff in error did not give the defendant in error, notice to produce the execution. In this we think the Circuit Judge erred. The notice was for = failure to return the execution. The proof shows, • it went into the hands of Witcher, the Deputy of Apple, the Sheriff. The ■ language of the Act is imperative on the officer to return the execution within the time prescribed by law; if he fail to do so, he and his securities are liable.

The judgment of the Circuit Court will be reversed, and judgment rendered against the Sheriff and his securities.