Dugan v. Commonwealth ex rel. Wayne

Court of Appeals of Kentucky

Dugan v. Commonwealth ex rel. Wayne

3 Ky. Op. 287, 1869 Ky. LEXIS 389

DecidedOctober 12, 1869

StatusPublished

This text of 3 Ky. Op. 287 (Dugan v. Commonwealth ex rel. Wayne) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dugan v. Commonwealth ex rel. Wayne, 3 Ky. Op. 287, 1869 Ky. LEXIS 389 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Williams:

Wayne sued out execution against Thompson and Simmes and placed it in the hands of Warfield, then acting as deputy for Lock, the sheriff, a few days before the latter went out and Harrison [288]*288came into office, Warfield also being continued as the deputy of the latter, but which, so far as this record shows, had not been levied, and which was not returned to the office whence it issued until the following July, being several months after the return day, when Warfield returned it satisfied, as deputy of his principal Harrison.

Swope, for appellants.

The money not being paid over to the creditor, he brought this suit on the official bond of the sheriff to recover the debt and' thirty per cent damages, for not returning the execution within thirty days of its return day, and having recovered judgment therefor, the defendants seek a reversal.

1. Because the petition is insufficient.

2. Because Warfield acted as deputy for Lock and not for Harrison, as to this execution.

The petition sufficiently avers the issual of the execution, its going to the hands of the sheriff, Harrison, after the teste and before the return day, its collection and failure to return within 30 days after it expired, and these are the essential averments to make the sheriff prima facie liable, if there was a reasonable excuse for not returning the execution within proper time this should be shown by way of defense, but need not be negatived by averment, non disproved by the plaintiff.

Lock could not legally have returned the execution, after he went out of office without having it levied before his term expired, nor could Warfield, his deputy, have done so. Therefore, it should legally be presumed to be in the hands of Harrison when collected, and this presumption is made the more certain by Warfield’s return thereon as deputy to the latter, and whether collected before or after the return day, the officer is now, under, our statute, responsible on his official bond.

Seeing no error, the judgment is affirmed, without damages, no supersedeas appearing.

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Opinion of the Court by

Judge Williams:

Wayne sued out execution against Thompson and Simmes and placed it in the hands of Warfield, then acting as deputy for Lock, the sheriff, a few days before the latter went out and Harrison [288]*288came into office, Warfield also being continued as the deputy of the latter, but which, so far as this record shows, had not been levied, and which was not returned to the office whence it issued until the following July, being several months after the return day, when Warfield returned it satisfied, as deputy of his principal Harrison.

Swope, for appellants.

The money not being paid over to the creditor, he brought this suit on the official bond of the sheriff to recover the debt and' thirty per cent damages, for not returning the execution within thirty days of its return day, and having recovered judgment therefor, the defendants seek a reversal.

1. Because the petition is insufficient.

2. Because Warfield acted as deputy for Lock and not for Harrison, as to this execution.

The petition sufficiently avers the issual of the execution, its going to the hands of the sheriff, Harrison, after the teste and before the return day, its collection and failure to return within 30 days after it expired, and these are the essential averments to make the sheriff prima facie liable, if there was a reasonable excuse for not returning the execution within proper time this should be shown by way of defense, but need not be negatived by averment, non disproved by the plaintiff.

Lock could not legally have returned the execution, after he went out of office without having it levied before his term expired, nor could Warfield, his deputy, have done so. Therefore, it should legally be presumed to be in the hands of Harrison when collected, and this presumption is made the more certain by Warfield’s return thereon as deputy to the latter, and whether collected before or after the return day, the officer is now, under, our statute, responsible on his official bond.

Seeing no error, the judgment is affirmed, without damages, no supersedeas appearing.

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Bluebook (online)

3 Ky. Op. 287, 1869 Ky. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugan-v-commonwealth-ex-rel-wayne-kyctapp-1869.