An action for damages was instituted against the sheriff for failure to make the money due according to the "face of an execution placed in his hands for enforcement. The defendant filed an answer denying the material allegations of the petition. The trial of a claim case' arising on a levy under the execution immediately preceded the call for trial of the action against the sheriff. The claim case resulted in the direction of a verdict finding the property not subject. When the case against the sheriff was called, both sides announced ready, and counsel for the plaintiff stated that his case was substantially as disclosed by the evidence introduced on the trial of the claim case. Held, that it was erroneous, at this stage of the hearing of the case against the sheriff, for the judge to decide that the plaintiff was not entitled to a judgment, and to enter a judgment declaring that it appeared that the issues involved in the case were adjudicated adversely to the plaintiff in the claim case; and thereupon to discharge the sheriff and dismiss the case against him.
Judgment reversed.
All the Justices concur. Money rule. Before Judge Edwards. Douglas superior court. March 21, 1912. Robert L. Rodgers, for plaintiff. B. G. Griggs, for defendant.