¶1A summary judgment may be rendered against a sheriff, for failing to make tbe money on an execution issued by a justice of tbe. peace wbicb by due diligence might have been made, for tbe amount of tbe execution and interest, and five per-cent, damages on tbe amount thereof; and tbe motion must be made in tbe Circuit Court when tbe amount claimed, by reason of interest or damages, exceeds tbe sum of one hundred dollars. — Code, §§ 3325 and 3333. Under former statutes, such judgments could not be rendered against sheriffs, for any negligence or misfeasance on their part in levying process issued by, and returnable before justices of tbe peace. — Thompson v. Acree, 69 Ala. 178. Tbe motion in tbis case disclosed a state of *631facts authorizing a summary judgment against the sheriff for failing to make the money on the execution issued on the judgment for one hundred dollars. The Circuit Court was without jurisdiction to render such judgment for the failure to make the money on the execution on the judgment for sixty dollars. That matter presented a case for a summary judgment by a justice of the peace. The motion as made presents two separate and distinct causes of action, which could not be joined, and as to one of which the Circuit Court was without jurisdiction. The demurrer to the motion upon this and other grounds was properly sustained.
¶2But the motion could ha,ye been amended so as to cure its defects. The Circuit Court erred in adjudging that the objections suggested by the demurrers could not be removed by amendment, and in dismissing the motion on that ground. A mere failure by the court to tender an opportunity to amend before dismissing the motion would not be reversible error, in the absence of any showing that the right to amend was denied. — Mahan v. Tatum, 69 Ala. 466. In such case, it is not made to appear that the appellant was denied a privilege to which he was entitled. There is simply a failure to show that the question as to the existence of the right was raised in the lower court. When, however, this right is expressly denied by the court, and the motion is dismissed on this ground, it sufficiently appears that the appellant was deprived of a valuable right, and this error to his injury entitles him to a reversal.
¶3Reversed and remanded.