Howard v. Priestly

58 Miss. 21 | Miss. | 1880

Chalmers, C. J.,

delivered the opinion of the court.

It was settled in Trotter v. Parker, 38 Miss. 473, that the Circuit Court might allow a sheriff to amend his return on a fieri facias at the return-term thereof, notwithstanding a motion might then be pending against him in relation to said return.

It is insisted that this right of the court to permit such amendment ceases with the expiration of the. return-term of the process; that the correctness of the return then made becomes an adjudication of the court, which fixes the rights of the parties, and cannot thereafter be allowed to be amended so as to divest vested rights. If the principle was sound, this record does not present a case calling for its application.’

The return here was not made at or before the return-term of the execution, but after the expiration of the term, when the execution possessed no vitality and was improperly in the sheriff’s hands. The motion did not allege a failure to return the writ, but sought to recover the penalty given by the statute (Code 1871, sect. 229) “for making such a return upon the execution in his hands as showed that the sheriff, voluntarily and without authority, omitted to execute the same.” Now the return in this case, as before remarked, was not made to any term of court, and, consequently, can in no point of view be entitled to any supposed sanctity as having become, by the expiration of the term, a judicial record ; and the request for leave to amend was preferred at.the next ensuing term after the indorsement upon the writ was made.

But we fail to see why the leave to amend may not be granted after the return-term as well as at such term, it being settled by the case of Trotter v. Parker, supra, that- it may be -done after the institution of jiroceedings against the sheriff based upon the original return. So to hold would enable the party instituting the proceedings, by delaying them‘for a single term, to cut off all defence by the officer and to hold the latter to the literal truth of an indorsement, which, perhaps, by'no fault of his, was accidentally false.

The authorities are by no means uniform as to the time when and the circumstances under which an officer may be permitted to amend his return upon process. A few of the cases limit it to the return-term of the writ; others to the time before the institution of proceedings against him. Some confine it to his incumbency in office; others permit it after he has vacated his office, and some allow it to be done by his ad'ministrator after his death. Authorities illustrating these various views will be found collected in 1 Abbott’s United States 'Digest (1st series), 253 et seq.

Without undertaking to lay down a rule to govern all cases, we think it safe to say that it is always within the power and discretion of the court to permit an officer, so long as he remains in office, to amend his return so as to show the truth of the facts as they actually occurred, provided no intervening rights have been acquired by virtue or upon the faith of the original return.

■ This rule, we think, is sanctioned by justice and the great weight of authority. It is held to be a matter resting largely in the discretion of the court, to be exercised liberally for the promotion of justice, where no statute restricts and no wilful default of duty has occurred.

There was no error in this case in permitting the amendment. Whether the return as amendéd embodied the truth, was submitted to the chancellor upon conflicting evidence. He decided in favor of the sheriff, and we find no occasion to reverse his decision. „

Decree affirmed.