Opinion
7 Div. 330.
May 3, 1923.
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
J. M. Miller, of Gadsden, and Hugh Reed, of Centre, for appellant.
The court erred in rulings on the evidence. Larkinsville Min. Co. v. Flippo, 130 Ala. 361, 30 So. 358; 3 Mayf. Dig. 463; Code 1907, § 4097; Birmingham Co. v. Bledsoe, 117 Ala. 495, 23 So. 153. The movant was due the general affirmative charge. Code, § 5906; Higdon v. Fields, 16 Ala. App. 182, 76 So. 466; Pilcher v. Hickman, 132 Ala. 574, 31 So. 469, 90 Am. St. Rep. 930; 2 Mayf. Dig. 563; Mattingly v. Houston, 167 Ala. 167, 52 So. 78; Murphree on Sheriffs, § 965.
Hugh White, of Montgomery, for appellee.
Preparations to move a stock of goods away from a store are of such nature that they would be open to the observation of a man familiar with the situation. Killen v. Lide's Adm'x, 65 Ala. 505; 1 Brickell's Dig. 810. The scope of cross-examination is largley within the discretion of the trial judge. Bradford v. Buttram, 205 Ala. 599, 88 So. 829; Smiley v. Hooper, 147 Ala. 646, 41 So. 660; Clay v. Sullivan, 156 Ala. 392, 47 So. 153. The requirement of the statute that the sheriff indorse the date of receipt of executions does not exclude all other proof of the exact time received. Hester v. Keith, 1 Ala. 316; Childs v. Jones, 60 Ala. 352; Craven v. Higginbotham, 83 Ala. 429, 3 So. 777; Adler v. Potter, 57 Ala. 571; Hauerwas v. Goodloe, 101 Ala. 162, 13 So. 567. Evidence of the situation of the sheriff with reference to other duties was admissible. 35 Cyc. 1537; Whitsett v. Slater, 23 Ala. 626. There was no error in refusing to movant the general charge and charges 4, 6, and 8. Authorities ubi supra; Shipp v. Shelton, 193 Ala. 658, 69 So. 102.
Summary proceeding against the sheriff for failing to make money on an execution.
There was no error in allowing the witness Edge to answer questions which drew out the information that he had seen nothing to indicate that defendant in execution was about to move his stock of goods, tantamount to a statement that he had seen no preparations for removing the stock. The jury might have inferred, from witness' residence in the neighborhood and his presence at the store on various and frequent occasions, that, if preparations for moving the stock had been made in such sort as might have been reasonably expected to attract the sheriff's diligent attention, the witness would probably have noticed the fact, and this, in combination with other conceivable circumstances, might have been some evidence that the sheriff had not been negligent in levying movant's execution. Killen v. Lide, 65 Ala. 508. The propriety of their subject-matter being assumed, there was no tenable objection to the form of the questions. It is not perceived how otherwise witness' observations as to the absence of facts could have been conveniently elicited, and, moreover, these questions were asked on the cross-examination of movant's witness — a matter as to which the court was privileged to exercise some latitude of discretion. Bradford v. Buttram, 205 Ala. 601, 88 So. 829. On these considerations we find no error in these rulings.
We do not find that the question asked of the witness Coker by movant, and made the subject of the fifth assignment of error, was relevant to any issue involved.
It was competent for defendant to show the true date of the delivery of the execution to him or his office, notwithstanding the different date indorsed thereon in presumptive obedience to the statute (section 4097 of the Code). Hester v. Keith, 1 Ala. 318; McMahan v. Green, 12 Ala. 73, 46 Am. Dec. 242.
The court properly permitted the sheriff to show the extent and urgency of the business during the time — a few days — elapsing between his receipt of movant's execution and his effort to make a levy, as tending to show his good faith and reasonable diligence. It was incumbent on him to give attention also to other process in his hands. 35 Cyc. 1537; Whitsett v. Slater, 23 Ala. 626.
Defendant, as sheriff, was required to use due diligence to make the money on movant's execution. Code, § 5906; Governor v. Campbell, 17 Ala. 570; O'Bryan v. Webb, 142 Ala. 263, 37 So. 935. Section 4107 of the Code provides that, "when a reasonable doubt exists whether the personal property levied on belongs to defendant, or whether personal property alleged to be his is subject to levy and sale, the sheriff may require of the plaintiff, his agent, or attorney, a bond of indemnity," and may decline to levy, if it is not made, etc. Defendant sought to avail himself of the protection of this statute, and ordinarily it would have been a question for jury decision whether the evidence offered on his behalf brought him within the purview of the statute. Assuming a conflict in the tendencies of the evidence in respect of the existence of a reasonable doubt, charge 2, requested by movant, would have been properly refused, for the reason that it spoke of "any alleged doubt in the mind of the sheriff," thus prejudicially reflecting on the character of defendant's excuse for deferring a levy while he might have an opportunity to demand an indemnity. This much, however, is said of the charge on the assumption that the question whether the evidence sufficed to show the existence of a reasonable doubt was a question for the jury, as we have already said, and in view of the fact that such a charge may be requested on another trial, in which the evidence may be different from that shown by the record on this appeal.
Appellee criticizes charges 4, 6, and 8, refused to movant, as being, in the circumstances shown by the evidence and without contradiction or justifiable inference to the contrary, equivalent in effect to the general charge. This view of the effect of these charges is substantially correct in our judgment. There was no evidence from which defendant or the jury were authorized to draw the conclusion that there was any doubt as to the ownership of the goods at the time when defendant first went to the store of the defendant in execution to make a levy. Defendant in execution, to the knowledge of the defendant sheriff, had been doing business at the place where he then was for several years. The defendant in this cause went there to make a levy. All question concerning his other duties became immaterial, for, notwithstanding those duties, he found time to go to the store; all he then had to do was to make a levy and turn the key. Instead, and, for aught appearing, solely on account of an empty threat by the defendant in execution, the defendant here deferred the levy until he could demand an indemnifying bond of plaintiff's attorney, to find, upon his return next day, that the stock of goods had disappeared. Nothing less than a reasonable doubt whether the stock of goods belonged to defendant in execution, or whether it was subject to levy and sale, will justify a demand for an indemnity bond. Defendant in execution was in possession of a stock of goods in a place where, as we have said, he had been doing business for several years, as the sheriff knew. In the absence of anything to rebut the presumption of ownership and liability, he had no right to refuse to make the levy, nor could his duty to make it then and there be avoided or evaded, on the ground of a threat that meant nothing, that he observed no preparations to remove the goods, or by reason of his misplaced confidence in the owner of the goods. Pilcher v. Hickman, 132 Ala. 574, 31 So. 469, 90 Am. St. Rep. 930.
The general charge, which was duly requested by movant, and the charges last above referred to, should have been given.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.