Opinion by
In our opinion facts sufficient to constitute a cause of action are stated in the petition and amended petition, and no brief being filed for appellee, we are unable to perceive the grounds upon which the demurrer was sustained. It is alleged that the claim against the county was allowed and ordered to be paid at the regular term of the court of claims; that at the same term an order was made making a levy to pay the claims then allowed, and a further order directing the sheriff to collect the levy and pay the claims so allowed; that the clerk of the court duly delivered h> the sheriff a list of persons chargeable with the payment of such levy, the sum to be paid by each, a list of the sums due and from whom due to the county, and also a list of persons to whom the county was indebted, and the amounts to be paid by the sheriff to each, which list embraced the name of the plaintiff’s testator and the amount due him.
*566 R. S. Montague, D. A. Cardwell, for appellant.
It was also alleged that the payment of the claim had been demanded of the sheriff, and that he failed to pay any part of it. It must be presumed that the county court performed the duty required by law by imposing a sufficient levy to pay all the claims allowed at its regular term held for that purpose, and that the sheriff did or might have collected, in the time required by law, a sum sufficient to pay plaintiff’s claim,. Neither the statute nor public policy requires the burden to be placed upon a county creditor of showing the sheriff has in his hands a sum sufficient to pay his claim, after the time has expired within which he is required to collect the county levy and pay the claim.
Wherefore the judgment of the court below sustaining the demurrer to the petition and amended petition is reversed, and cause remanded for further proceedings consistent with this opinion.