56 Ark. 45 | Ark. | 1892
1. “Por failure to return an execution ’ ’ the statute imposes upon a sheriff a penalty # equal to the amount of the judgment and costs and ten per cent, thereon. Mansf. Dig. sec. 3964.
Por failure to “ return any such execution on or before the return day therein specified” a statute, which was in force when the first was enacted, imposed a penalty of the “whole amount of money in such execution specified,” and no more. Id. sec. 3061. There is no such plain repugnance between the two provisions that the latter must yield and give place exclusively to the former. Zerger v. Quilling, 48 Ark. 157.
■ The two may stand together by applying the latter, according to its terms, in cases where there is a failure to return the execution “on or before the return day therein specified; ” and by confining the other to cases wherein no return has been made at all.
The statute is highly penal, and its terms should not be extended .by construction to cases not within its plain meaning. The ten per cent, penalty has never been, enforced in any case where the execution had been . returned. In this case the return was made before suit was instituted. As the return was legal, although after the return day, there could be uo recovery of the ten per cent, penalty inflicted by the first section above.
2. The execution was returnable, by its terms and by the law, “within 60 days” from its date. The six-f . J tieth day after its date was Sunday, and the execution was returned the next day thereafter. It is argued that, as no return could be made on Sunday, the officer might legally postpone the act until Monday. But the statute ■ will not admit of that construction. It does not require the return to be made upon the sixtieth day only. If it did, and that day were Sunday, then the argument would be forcible. But executions are returnable ‘ ‘ in sixty days from their date” (Mansf. Dig. sec. 2971), and a legal return may be made by the sheriff at any time after the writ comes to his hands — even a return of nulla bona, if he knows that the defendant is insolvent, and is willing to take ■ the hazard of his remaining so. Reeves v. Sherwood, 45 Ark. 520.
The penal statute moreover prescribes that he shall be liable for a failure to make his return “ on or before the return day.” “ Oh or before the return day ” does not mean after the return day. Alston v. Falconer, 42 Ark. 117. And as the last day fell upon Sunday, it was the officer’s duty to- make the return on the preceding Saturday. Crocker on Sheriffs, sec. 40; Sedgwick, Stat. & Const. Law, p. 358 ; Sutherland, Stat. Const. sec. 115 ; Haley v. Young, 134 Mass. 364 ; ex parte Simpkin, 105 Eng. C. D. 392; see Endlich, Int. of Stat. sec. 393.
The return was not made on or before the sixtieth day, and the penalty was incurred under section 3061.
3. The proceeding was instituted by motion for iudgment under sections 3963-4, and it is jo o argued that the plaintiff’s cause should fall because those sections, as held above, do not apply. But the complaint contains all the allegations necessary to a recovery under section 3061. The defendant demurred to it, and, after the demurrer had been overruled and the cause continued to another term, consented to an order setting aside the continuance, filed his answer and went to trial. Efither of these acts was sufficient to enter his appearance and waive the formal issue and service of summons. The defendant was therefore in court, and cannot now be heard to object that he was brought in by notice instead of summons.
4. The judgment was against P. R. Cravens & Co., and the execution followed it. It was good as to P. R. Cravens. Adding the words “and company” after his name was at most an irregularity, and it afforded no excuse to the officer for refusing or neglecting to return it. Jett v. Shinn, 47 Ark. 373.
The judgment will be reversed, and judgment entered here for the amount of the execution and interest without damages.
It is so ordered.