#### Swift & Company v. Russell.

4-2978

Opinion delivered September 25, 1933.

*18 Hugh Basham, for appellant.

Paul McKennon, for appellee.

Humphreys, J.

This suit was instituted 'by appellant against Fred Russell, sheriff, and his bondsmen, in the circuit court of Johnson County, to recover the amount of a judgment it obtained against E. C. Porter in the court of a justice of the peace in Spadra Township, in said county, on the 10th day of February, 1932, for failure to levy and return an execution issued upon said judgment and delivered to said sheriff. The appellees interposed the defense that said sheriff refused to receive and levy the execution because appellant would not pay the fees allowed him by law for levying the process. The cause was submitted to the court sitting as a jury upon the pleadings and testimony, which resulted in a judgment dismissing appellant’s complaint, from which is this appeal.

The sheriff testified that he refused to accept the execution because appellant failed to pay his costs when he demanded same. B. B. Logan, the office deputy, testified that he was instructed by the sheriff not to accept the execution from appellant until the costs of service were advanced, and that the execution was not filed with him.

The testimony detailed above is substantial evidence tending to show that the sheriff demanded his fees, in accordance with § 4591, Crawford & Moses’ Digest, as a prerequisite to serving the execution. This court never disturbs a verdict when supported by any substantial evidence.

No error appearing, the judgment is affirmed.