It appears that R. P. Robinson paid to W. L. Stuckey, the attorney for appellees, an amount of money sufficient to pay off the claims of appellees against D. B. Elliott et al. The payment to their attorney was a payment to them. Having received an amount sufficient to satisfy their judgment, they no longer had any cause of action against the sheriff. Accepting the money after a failure to return the execution was tantamount to a waiver of the cause of action growing out of such failure. • They were no longer parties aggrieved by such failure. Section 3108, Sand. & H. Dig., does not contemplate that parties shall receive full satisfaction of their judgments and still pursue the sheriff for damages.
By an arrangement between Stuckey and Robinson, the suit was really instituted for their own benefit, to reimburse Robinson, and to secure certain attorneys their fees. Plaintiffs had no beneficial interest in the suit. If their right of action were assignable, there is no pretense that they had assigned same. The fifth, sixth and seventh requests for instructions stated the law applicable to the facts, and should have been granted.
Por the error indicated, the judgment is reversed, and judgment is entered here in favor of appellant for costs.