Fondrin v. Planters' Bank , 26 Tenn. 447 ( 1846 )

Turley, J.

delivered the opinion of the court.

The Planters Bank of Tennessee, moved for and obtained a judgment against John Fondrin," former Sheriff of Lawrence county, and his sureties, for the non-return of an execution issued, from the Circuit Court of Lawrerice, on the 25th day of February 1846, in behalf of the Planters Bank against John B. Stribbling, Thomas A. Deavenport. and Ebenezer Dotson, which came to the hands of the-.Sheriff Fondrin, on the same day it issued and which had never been returned.

It appears that the time for which Fondrin had been elected Sheriff of Lawrence county, expired a few weeks after his reception of the execution, and a considerable time before it was returnable, and that another was elected in his stead; it was proven that after Fondrin ceased to be Sheriff .of the county, the execution was seen in a tavern- house in Lawrenceburgh with an endorsement on it, in the handwriting of Fondrin, that he had collected one hundred dollars thereon.

The circuit judge gave judgment against Fondrin and his sureties for the non-return of the execution: in this we think there is error. Fondrin’s term of service having expired within a short period of his reception of the execution, he had no power to act under it unless he had taken steps by a levy before he ceased to be Sheriff, and it was his duty, in case he had not, to hand over the execution to his successor in office.

There is nothing from which it appears that he had began the execution of the process, before the expiration of his office, and nothing showing whether he received the hundred dollars which were seen credited on the execution -before or after the expiration of his term of service. Under these circumstances, we think there was not sufficient proof upon which to render a judgment by motion for a non-return of the execution.

Let the judgment be reversed.