1. CONTEMPT. Sheriff's failure to levy writ to enforce lien is no defense to removal and retention of the property by lien or after levy by another under valid process.
Sheriff's failure to levy a writ to enforce lien on cotton seed is not a defense to removal and retention of such cotton seed by person holding writ, after levy thereon by sheriff under valid process issuing from circuit court.
2. CONTEMPT. On alleged failure of officer to discharge duty in levying writ, one may not take and retain property, after notice that same is in custody of law.
One may not take the law in his own hands, and, because of alleged failure of officer to discharge his duty in levying writ, take and retain property, after he has notice that same is in custody of the law.
3. APPEAL AND ERROR. Order requiring return of property taken from sheriff, or payment of value, will not be considered on appeal, where question of ability to comply with order was not raised in lower court.
Court order, requiring return of property removed while in possession of sheriff under levy, or to pay value thereof, without inquiry as to ability, will not be reviewed on appeal, where question of ability was not presented to lower court by plea or proof.
McGOWEN, J., delivered the opinion of the court.
Upon an issue made up and an appearance in court, Shelton was adjudged by the circuit court guilty of a contempt in removing and failing to return cotton seed levied on by the sheriff of the county under process issuing from the circuit court, and the court below ordered Shelton to pay the value of the cotton seed removed, two hundred ten dollars, or return the cotton seed, or, in default of payment or return of the cotton seed, that he stand committed to the county jail until the order of the court was complied with. The burden of the contemnor's plea in the lower court was that he had sought to have the sheriff levy a writ to enforce a lien upon the cotton seed, and that the sheriff had willfully refused to levy his writ, which had been issued prior to the time the writ issued from the circuit court.
In our opinion his quarrel is with the sheriff, and a failure to have the process served is not a defense to the willful retaining of property which had been legally levied upon by a proper writ issued upon a valid judgment rendered by a court of competent jurisdiction. One may not take the law in his own hands and, because of an alleged failure of an officer to discharge his duty, take over and retain the property after he has notice that same is in the custody of the law.
The further complaint is urged that the court has required the contemnor, Shelton, to return the seed or pay the value thereof, without any proof as to whether or not Shelton is able to comply with the order of the court. As we view this record, the question here raised was not presented to the lower court by plea or proof, and cannot now be properly considered by us as a ground of reversal of the case.
We think the court below very properly adjudged this appellant guilty of a contempt, and that there is no error upon which to predicate a reversal of this case.
Affirmed.