Leavitt v. Smith
Supreme Court of Alabama
Writ of error to the Circuit Court of Coosa. This was a suggestion under the statute, at the suit of the plaintiffs in error, against Smith, as the sheriff of Coosa,.and the co-defendants as his sureties, ailedging, that with due diligence a writ of fieri facias placed in the sheriff’s hands, at the suit of the plaintiffs, against Jeremiah M. Friou’s estate, could have been collected.
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Writ of error to the Circuit Court of Coosa. This was a suggestion under the statute, at the suit of the plaintiffs in error, against Smith, as the sheriff of Coosa,.and the co-defendants as his sureties, ailedging, that with due diligence a writ of fieri facias placed in the sheriff’s hands, at the suit of the plaintiffs, against Jeremiah M. Friou’s estate, could have been collected. The suggestion was traversed, and the issue submitted to a jury, who returned a verdict in favor of the defendants. On the trial the plaintiffs excepted to the ruling of the Court. From the bill of exceptions it…
1Opinion of the Court
COLLIER, C. J
— It is insisted for the defendants, that if the Circuit Court erred in the admission of evidence, or in the refusal to charge the jury, the plaintiffs were not prejudiced, and cannot complain; because the proceedings upon the claim of property interposed by Dawson and S. Friou, amount to an election to pursue that remedy, and bars the motion against the sheriff for a failure to perform his duty. There is nothing in the record from which it can be inferred, that the plaintiffs were willing to proceed to the trial of the right of property, or had elected that case as a mode of…
2Cases cited3 opinions
- Bondurant v. BufordSupreme Court of Alabama · 1840
- Hallett v. LeeSupreme Court of Alabama · 1841
- Bowman v. TeallNew York Supreme Court · 1840
3Cited by11 opinions
- Ryan v. CouchSupreme Court of Alabama · 1880
- Nesbitt v. McGeheeSupreme Court of Alabama · 1855
- Smith v. LeavittsSupreme Court of Alabama · 1846
- Pounds v. RichardsSupreme Court of Alabama · 1852
- Branch of the Bank of the State v. GaffneySupreme Court of Alabama · 1846
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