Opinion · Supreme Court of Alabama

Marcum v. Burgess

67 Ala. 556

Type
Opinion
Court
Supreme Court of Alabama
Jurisdiction
Alabama
Date
1880-12-15
Topic
general

STONE, J. — The statutory damages of twenty per cent, on the judgment for not returning an execution according to the mandate thereof, can be recovered of a sheriff only in a summary proceeding under the statute. — Code of 1876, section 3357; Governor v. Powell, 10 Ala. 544. In a common law action on the bond for not returning such process, the statutory damages, as such, can not be recovered. The violation of duty by the sheriff, in not returning the execution, is a breach of the official bond, which entitles the plaintiff to recover ; but in the absence of averment and proof of actual injury, there can be only nominal damages. — Bagley v. Harris, 9 Ala. 173; Evans v.

Citator

UpLaw has not yet analyzed Marcum v. Burgess. The absence of a flag is not a finding that it is good law.

Cited by
2 opinions
STONE, J.

— The statutory damages of twenty per cent, on the judgment for not returning an execution according to the mandate thereof, can be recovered of a sheriff only in a summary proceeding under the statute. — Code of 1876, section 3357; Governor v. Powell, 10 Ala. 544. In a common law action on the bond for not returning such process, the statutory damages, as such, can not be recovered. The violation of duty by the sheriff, in not returning the execution, is a breach of the official bond, which entitles the plaintiff to recover ; but in the absence of averment and proof of actual injury, there can be only nominal damages. — Bagley v. Harris, 9 Ala. 173; Evans v. Governor, 18 Ala. 659. The Circuit Court, however, erred in sustaining the demurrer to the complaint. It is sufficient for the recovery of nominal damages.

Reversed and remanded.