(after stating the facts.) The judgment of the circuit court in the case of Ayres v. Roy, in which Ayres recovered judgment against Roy for the logs, is conclusive here as to the title and right of possession of the appellee to the logs which the sheriff took possession of under the order of delivery in that suit. Appellants allege that the judgment was void for want of jurisdiction of the person of Roy, but they fail to show it. The judgment recites that “the defendant had been duly summoned to appear and answer, but made default.” This was sufficient to show jurisdiction. It was the province and first duty of the court to determine- whether it had-jurisdiction of the person of-the defendant, against whom it -was about to render judgment. The record affirmatively recites: “It appearing to the court that defendant had been duly summoned.” We- must presume, in the absence of evidence-to the contrary, on collateral attack, that the . court had evidence before it upon which to base a finding in favor of its jurisdiction. “When the jurisdiction of a court of general jurisdiction, depends upon facts not appearing in the record, they will be presumed in a collateral proceeding.” McConnell v. Day, 61 Ark. 464, and cases cited.
When the sheriff executed the order of delivery by taking possession of the property named therein, from that moment such property was in custodia le gis. Cobbey on Replevin, § 706; Hagan v. Lucas, 10 Pet. (U. S.) 400.
Having seized the property by virtue of legal process in the replevin suit, he was on that account privy to the prosecution of that suit. Prentiss v. Holbrook, 2 Mich. 372. See Gelston v. Hoyt, 13 Johns (N. Y.), 580. And he could only exempt himself from liability for loss of the property which had come into his possession in that proceeding by showing that he had made such disposition of it as the law directs, or that its loss was not on account of his negligence. It was not his province then, nor can he now question the right and title of the plaintiff in that suit. Cobbey on Rep., § § 1168-1178. As custodian of the property, at the termination of that litigation, he held the fruits of it subject to the lawful orders of the tribunal whose duty it was to adjudicate the rights of the parties, unless after seizing it he had disposed of it as the statute directs. Kirby’s Digest, § 6863. In contemplation of law the property, after seizure by the sheriff, remains in his possession (the defendant failing to give bond) until it is turned over to the plaintiff in replevin. As to whether he made legal disposition of it was submitted to the jury upon proper instruction, and there was evidence to support the verdict.
This view eliminates every question presented at the trial and so exhaustively treated in briefs of counsel, except the following :
1. The sheriff’s return was not conclusive. The seventh paragraph of the complaint set out in the statement of facts shows that this was a suit, in legal effect, against the estate of 'the sheriff and the sureties on his bond for false return. The return of the officer was directly questioned. This being true, the court did not err in refusing the request of appellants for instruction telling the jury that the return of the officer on the order of delivery in the replevin suit was conclusive, nor did it err in granting the request of the appellee for an instruction to the effect that such a return of the sheriff “was only prima facie evidence of the fact that the possession of the logs had been turned over to the appellee.” State v. Lawson, 8 Ark. 380; Craven v. Higginbotham, 83 Ala. 429; Thorn v. Kemp, 98 Ala. 417; Murfree on Sheriffs, p. 429, § 866.
The question whether or not the logs in the replevin suit, after being levied on by the sheriff, were lost through his negligence was properly submitted to the jury, and there was a conflict in the evidence with ample evidence to sustain the jury’s verdict. We therefore will not disturb it.
The jury was properly directed in instruction No. 5B* as to what would constitute a delivery of the logs to the plaintiff in the replevin suit, and there was evidence to sustain the verdict that no such delivery had been made to appellee.
2. The measure of damages in the case is the value of the logs at the time they should have been delivered by the sheriff to the plaintiff in the replevin suit. The sheriff was simply their legal custodian, and if, through his negligence, they were lost, as the jury has determined, he was liable for their value as they were when he, in the absence of a retaining bond, should have turned them over to appellee, the plaintiff in the replevin suit. The jury was properly directed as to this.† It follows that the court was correct in refusing the following request of appellants for instruction: “The original order of delivery, affidavit and complaint in the replevin suit of Ayres v. Roy state the value of the logs to be $750. Your verdict, therefore, can not in any event exceed said sum.” The allegation of value in the complaint in replevin is a matter of form in pleading. The plaintiff must prove the value, even if not denied, and he may prove a greater value than that alleged, if he can. Bailey v. Ellis, 21 Ark. 489; Cobbey on Replevin, § § 539, 540.
3. Appellants waived any objection they might have had to the jurisdiction by answering without making or insisting on a motion to abate for want of .service.
4. The penalty of $50 “for false return” was not authorized by the statute. This was not a suit under section 4487, sub-div. 6, for failing to execute process, as contended by counsel for appellee, but, as we construe the complaint, it is a suit against the officer for false return.
In the respect indicated the verdict was erroneous. The judgment will be modified by reducing it here in the sum of $50; and, as thus modified, it will be affirmed.
“No. 5 B. If the sheriff delivered the logs to Ayres, he was not responsible for their loss. His return states that he did deliver them to Ayres, and his return is prima facie evidence of that fact. Delivery of logs to Ayres does not consist in making a return stating that he delivered them to him, neither does it consist in merely telling Ayres that he placed him in possession of them, if Roy or any one else was in possession of them. But the only way he could have delivered the logs to Ayres so as to relieve himself of responsibility would have been by placing Ayres in the actual exclusive control of the logs.”
“No. 6. If you find that the plaintiff is entitled to recoved under at the actual cash value of the logs that were levied upon; and, if you see proper to do so, you may allow interest at the rate of six per cent, per annum on the value of the logs from the time they were levied unon to the present time.”