Sanderson v. Alcock

An appeal will not lie by the sheriff, from an order of the county court, directing him to bring into court money which he has received upon an execution.

Appeal from Baltimore county court. The appellee in this cause obtained judgment against one Benjamin Brady, and on the 11th May, 1836, sued out a ji. fa. thereon, returnable to September term, 1836. The sheriff not returning the writ, was laid under a rule to return it, on or before the 10th September. On the 17th October, the sheriff (the appellant) having still failed to return the writ, the plaintiff (now appellee) moved for a judgment against him, under the act of 1794, ch. 54, sec. 1. The appellant resisted the judgment upon the following grounds: 1. Because, whether the plaintiff be entitled to the proceeds of the execution against Brady, is a question now depending in this court. 2. Because a motion is still pending to quash the execution in this cause. 3. Because the defendant offered, if the plaintiff would indemnify the said Sanderson, to pay him over the proceeds of sale. 4. Because the said Sanderson is sued for taking said goods, and a bill in equity is also filed against him. The appellant then filed his petition in Baltimore county court, admitting the issue and levy of the execution — that the proceeds of the goods were subject to the order of the court that suits at law, and in equity had been brought against him by .various parties for the same proceeds, and he prayed to be allowed his expenses and counsel fees. At May term, 1837, the sheriff informed the court that other suits had been brought against him by Erskine and Chapman for the whole proceeds, and then moved the court for a rule on the plaintiff, to show cause why the motion for a judgment against the sheriff should not be extended until the next term, suggesting the reasons before relied on and the further one, that the property was under mortgage at the time of the levy; and produced the mortgage. The appellee then moved the court for a judgment against the sheriff under the act of 1797, ch. 43, and filed the answer of Sanderson to one of the equity causes depending against him, showing the amount he had received under the fi. fa. against Brady, and it was now admitted that the mortgage on Brady's goods was satisfied. The proceedings in the several causes against Sanderson were agreed to be received as evidence upon the plaintiff’s motion for a judgment. At October term, 1837, Baltimore county court (Archer, Ch. J. Magruder and Purviance, J’s) decided, that the motion for a judgment in this case against the sheriff be overruled, and also the motion to enlarge the time for the sheriff to make return of the fi. fa. in this case. But it appearing to the court from the evidence in the cause, that the sheriff has made on the fi.fa. the sum of $8,158.95, being the net proceeds admitted by the sheriff to be due, after deducting the amount of the judgment obtained by the mortgagees of Brady’s goods and costs, which amount is by consent of the plaintiff’s counsel deducted. It is ordered by the court this 4th October, 1837, that the late sheriff forthwith on the service of this order on him, bring into court the amount thus made, and when brought in, the court will on application stay the money in court, until a bond of indemnity shall be tendered to the sheriff, to be approved of by the court, or one of the judges thereof. From which order the said Henry S. Sanderson, late sheriff, appealed. At this term the appellee moved to dismiss the appeal.