Nelson v. Nye

43 Miss. 124 | Miss. | 1870

Simrall, J.:

This was an action of assiimpsit brought by N. G. Nye, in. the circuit court of Yazoo county, against T. L. Nelson, to recover the amount due on a promissory note.

The plaintiff below, N. G. Nye, derived title to the note by the endorsement and delivery of the same to him by J. 0. Howe, the payee. Judgment by default final was rendered on the 14th May, 1866, against Nelson for the amount of nóte and interest. The case is brought into this court by writ of error. Two errors are assigned:

1st. Because the return on the process is irregular.

2d. Because there is no evidence that S. 0. Johnson was a special deputy.

The return on the summons is in these words, “ executed in person and by copy, April 30th, 1861; J. W. Rogers, sheriff, by S. 0. Johnson, special deputy.” The statute empowers the sheriff to appoint one or more deputies by a writing under his hand. Every deputy (except such as may be appointed to do a particular act), shall take and subscribe an oath faithfully to execute the duties of deputy sheriff. The oath shall be filed in the office of the probate clerk. Rev. Code of 1857, p. 122, art. 115. It is insisted by the counsel for plaintiff in error, that the appointment of the special deputy, to serve and return the writ, must be endorsed on the process itself, or at least,' there must be evidence of such appointment in the record. The statute provides a mode for the appointment of deputies, viz: “By a writing under the sheriff’s hand.” If the deputy is to act as the general representative of the sheriff in the duties of his office— then the “ writing evidencing his right so to do, with the certificate of the oath or affirmation, must be filed in the office of the probate clerk. If, however, the authorization of the deputy is to do a special or particular act, there seems to be a compliance with statute, if the appointment be made by the sheriff in writing.” It is not made necessary to file it in the probate court clerk’s office. Nor is it directed that the appointment, (if for the purpose of executing a writ), should be endorsed on the writ, or even filed among the papers of the cause. In the absence of information to the contrary furnished by the record, we must presume that the special deputy in this instance was duly-authorized to serve and return this writ. If not so authorized, the court below was the proper place to have raised and litigated that question. This court has repeatedly held that where attachment and other bonds, purported to have been executed by an attorney in fact for a principal, it will indulge the presumption that the officer who took the bond, and whose duty it was to look into the point of authority, had done his duty in that behalf, and has sustained the decisions of the circuit courts in refusing to quash such bonds, because the authorization of the agent was not produced in that tribunal. We think, therefore, that this assignment of error is not well taken.

The other error complained of is that'the service is insufficient. “ The sheriff shall return a written statement of his proceedings on the writ.” Rev. Code, p. 489, art. 63. Article 64 provides the several modes of service: “ Original process shall be served personally on defendant, if to be found, and a true copy thereof delivered to him.” etc.

The service in this caséis a substantial compliance with the statute. The “ proceedings ” reported as had under the writ, import that the writ was served on the defendant personally. And we understand the officer to mean, by the words, “ and by copy,” that the copy was delivered to the defendant, or placed subject to his personal control and possession. The object of tbe legislature in requiring the sheriff to state specifically his proceedings under process, was that the court might determine whether the defendant had received due and proper’ notice of the suit. The return on this writ is unlike those in the cases of Merritt v. White, 37 Miss. Rep., 438; Foster v. Simmons, 40 Miss., 587; where the service was held insufficient. Let the judgment of the court be Affirmed,