47 Fla. 265 | Fla. | 1904
(after stating the facts). — The sheriff of the county in which the court is held is the sheriff of this court. Section 1322, Rev. Stats, of 1892.
The sheriff of Duval county is ex officio a deputy of the sheriff of this court. Section 1324, Rev. Stats.' of 1892.
Each sheriff is required in person or by deputy to execute all process of this court to be executed in the county. Section 1241, Rev. Stats, of 1892.
The return does not question the regularity of the execution, or the constitutionality of the section (section 1250, R. S. 1892) on which this proceeding is based. In the briefs of the respondent’s attorney, however, great
The execution was directed “To the Sheriff of the Supreme Court of said State (Florida), Greeting,” and the sheriff!was commanded “that you have the said sum of money before the justices of said court at Tallahassee, when satisfied.” As the judgment was for costs, it should have followed section 134-1, Revised Statutes (1892), and have been directed “to all and singular the sheriffs of the State of Florida, and returnable in ninety days from the date of the issuance thereof.” The clerk seems to have followed an old form in use before the adoption of the Revised Statutes in 1892. The defendant has never refused to execute the writ because of these defects, nor does he in his return set up these defects as an excuse for his failure to so execute it. On the contrary he returns that he received and accepted the writ for the purpose of executing it, and that he did in fact execute it hy collecting the money due upon it after these proceedings were begun. Whether the defects pointed out would justify the officer in refusing to execute the writ it is- not necessary for us to decide as we have no doubt that these defects were amendable, and that they did not render the execution void, and, therefore, constitute no defense to the sheriff under the circumstances stated above. 1 Freeman on Execution (3rd ed.), sec. 103; 8 Ency. Pl. & Pr. 384, 386, 389, 397.
In Missouri it is held that though an execution be made returnable to an improper time, .the sheriff must take notice of the íaw and return it as required by law. Milburn v. State, 11 Mo. 188;Estes v. Long, 71 Mo. 605; 1 Freeman on Executions (3rd ed.), sec. 44.
Section 1252, Revised Statutes of 1892, provides: “Every sheriff or deputy failing to execute any writ or other process, civil or criminal, to him legally issued and directed within his county, and make due return thereof where such process shall be delivered to him in time for execution, shall forfeit one hundred dollars for each neglect, to be paid
At common law it seems that a sheriff was liable to be ruled and held in contempt and amerced for failure to execute á writ, or for not making a return. This was a summary remedy.
The plaintiff also had his remedy against the sheriff in an action on the case for damages. 8 Bacon’s Abr. 689 (Title, Sheriffs) ; 7 Comyns’ Dig. 284, 285, 286; 1 Tidd’s Pr. marg. p. 307; 2 Tidd’s Pr. 1017, 1018; Cary’s Ch. Rep. 62; 12 Modern Rep. *349; 3 Freeman on Executions (3rd ed.) sec. 367, 368, 369.
There does not appear to have been any right of jury trial in this summary proceeding by attachment. Our statute (section 1250) is but a modification of this common law method of enforcing a return, and for punishing the negligence of a sheriff in executing writs. We do not think it infringes any common law right of jury trial as set forth in Wiggins v. Williams, 36 Fla. 637, 18 South. Rep. 859, nor is it a substitute for the remedy by action at law for damages. Wells v. Caldwell, 1 A. K. Marshall (Ky.) *441; Lewis v. Garrett’s Admr. 5 How. (Miss.) 434. We have no doubt that in an action on the case for damages against the sheriff by an execution creditor for failure to make a return or false return, or for giving undue preference to
This court, though vested with appellate jurisdiction only (except in certain specified cases) has jurisdiction to entertain proceedings under the statute with respect to its own lawful process and writs. Mitchelson’s Adm’r. v. Foster, 3 Met. (Ky.) 324; Bank of Tennessee v. Cannon, 2 Heisk. (Tenn.) 428.
Taylor, C. J., and Cockrell, Shackleford, Whitfield and Carter, JJ., concur.