Spenney v. Sorrell
Alabama Court of Appeals
Action for Penalty. Appeal from Autauga Circuit Court. Heard before Hon. W. W. Pearson. Proceeding's by J. M. Sorrell against V. A. Spenney, sheriff for the penalty for failure to make return of an execution. Judgment for plaintiff and the defendant appeals.
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Action for Penalty. Appeal from Autauga Circuit Court. Heard before Hon. W. W. Pearson. Proceeding's by J. M. Sorrell against V. A. Spenney, sheriff for the penalty for failure to make return of an execution. Judgment for plaintiff and the defendant appeals. Acceptance of payment by a plaintiff is a discharge of the sheriff for a breach of duty growing out of an execution in favor of the plaintiff. — Governor v. Powell, 10 Ala. 544. An officer may excuse a breach of duty by matter set up by way of plea. — Davidson v. Wiley, 31 Ala. 452; Andress v. Crawford, 11 Ala. 853; Yastbmd'er v. Spinks,…
1Opinion of the CourtPelham, P. J.
The proceeding in the circuit court was at the instance of the appellee, as the plaintiff in execution, against the sheriff of Autauga county, under the provisions of sections 5904 and 5905 of the Code of 1907, to recover 20 per cent, on the judgment for not returning an execution. On the hearing of the motion for a summary judgment against the sheriff, it was shown without conflict in the evidence that the sheriff had not returned the execution in the time required by law7, and a prima facie right to recover against the sheriff was made out by the evidence introduced. The special defenses…
2Cases cited10 opinions
- Winter-Loeb Grocery Co. v. Mutual Warehouse Co.Alabama Court of Appeals · 1912
- McClure v. ColcloughSupreme Court of Alabama · 1843
- Harris v. BradfordSupreme Court of Alabama · 1842
- Davidson v. Wiley, Banks & Co.Supreme Court of Alabama · 1858
- Louisville & Nashville Railroad v. MasonAlabama Court of Appeals · 1912
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3Cited by1 opinion
- Parker v. Ebsco Industries, Inc.Supreme Court of Alabama · 1968