249 N.W. 321 | N.D. | 1933
These actions to recover the possession of personal property were each begun by the issuance of a summons and complaint in September, 1930. Having executed the requisite *592 affidavits and undertakings, the plaintiff required the sheriff to take the property in question from the defendant and deliver it to the plaintiff. Accordingly the sheriff took such property. He was not required to return it to the defendant and so delivered it to the plaintiff. But the sheriff failed to file the notices and affidavits with his proceedings thereon with the clerk within twenty days after the taking of the property as required by § 7527, Comp. Laws 1913. The defendant duly answered in the actions. The cases were not brought to trial, however, and no papers were filed with the clerk. In May, 1932, the defendant moved the court to dismiss both claim and delivery proceedings on the ground that the provisions of § 7527, Comp. Laws 1913, had not been complied with. The motions were resisted by the plaintiff. The court granted the motions in each case and "ordered that the claim and delivery proceedings with papers and process are hereby dismissed and the property seized thereunder hereby ordered to be returned by the sheriff to the defendant." From these orders plaintiff perfected the instant appeals.
Section 7527, Comp. Laws 1915, provides:
"The sheriff shall file the notice and affidavit with his proceedings thereon with the clerk of the court in which the action is pending within twenty days after taking the property mentioned therein."
The sole question on these appeals is as to whether the failure on the part of the sheriff to comply with the requirements of the foregoing statute is ground for a dismissal of the claim and delivery proceedings.
The plaintiff insists that § 7522, Comp. Laws 1913, is directory only; that the statute makes no provision for dismissal upon failure to comply with its direction and that therefore the court erred in its orders. The defendant insists that the statute is mandatory; that upon failure of the sheriff to file the notice and affidavit the seizure becomes void ab initio and the proceedings must be dismissed and the property returned to the defendant.
Failure to comply with the provisions of § 7527, supra, does not avoid the proceedings. The default is that of the officer. A plaintiff who seeks to obtain possession of property through claim and delivery has done all that is required of him when, in a proper action, he executes a sufficient affidavit and undertaking and makes requisition upon the sheriff pursuant to the provisions of §§ 7517, 7518, 7519, Comp. Laws *593
1913. The sheriff when he has taken the property and turned it over to the plaintiff has no further duty to perform except that he must file the notice and affidavit with his proceedings thereon with the clerk. The plaintiff ought not to be penalized if without fault on his part the sheriff fails to file the papers. Parlin v. Austin,
We have not overlooked the case of Guernsey v. Tuthill,
Reversed.
BURR, CHRISTIANSON, BIRDZELL and BURKE, JJ., concur. *594