Skinner v. Wilson

61 Miss. 90 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

Motion against a sheriff for failure to make return of an execution at the proper time. The facts as established by the finding of the judge below are as follows: The execution was issued by the clerk on March 10,1882, returnable on March 27,1882, and handed to the plaintiff in execution in person. He kept the writ in his possession until the twentieth of March and then handed it to the sheriff with a request that it be forthwith executed. I.t then being only seven days before court, the sheriff declined to execute it. Plaintiff insisted that it should be done as a personal favor to him, and said that if the sheriff would specially deputize one Doty, who lived in his neighborhood, which was also the neighborhood of the defendant, he would carry the writ to Doty and the sheriff should have no trouble and run no risk, and incur no liability by appointing Doty. "Yielding to this persuasion, the sheriff indorsed the deputation to Doty on the writ and delivered it to the plaintiff, who carried it to Doty. The latter executed it by levying on a horse which was at once claimed and bonded by a third person. On the first day of court, the return day of this writ, Doty carried it to the sheriff and procured the latter to write out his return upon the back of the paper, and left it in the sheriff’s office, but failed to sign the return as the statute (Code 1880, § 328) required him to do. The sheriff failed to return the process to the clerk’s office, and for this failure the present motion is brought under § 331 of the Code, which makes the sheriff and his sureties liable for the whole amount due upon the execution without regard to whether the plaintiff has actually sustained any loss by reason of such failure or not.

It is insisted for the sheriff that the execution was not to be considered as issued, so far as he was concerned, until it came to his hands, and as that was less than fifteen days before the then ensuing term of the court, he had the right, under § 1743 of the Code, to treat it as void process and disregard it altogether. This position is not maintainable. The clerk issued the process more than fifteen days before the next ensuing term, and, therefore, properly made it returnable to that term. It came to thé sheriff’s hands only seven days before the return day. If it was true that this was then too late to have it executed, the sheriff should have returned it with his indorsement to that effect, but he could not treat it as a nullity, and fail or refuse to return it altogether. It is evident that his intention in this case was to return it as having come to hand too late for action, and that he was persuaded out of this course by the entreaties of the plaintiff, and by the promised release from all liability if he would appoint Doty as special deputy. Doty therefore became the private agent of the plaintiff, and it is well settled that the sheriff is not officially bound for the default of a special deputy selected by the plaintiff. Stone v. Chambers, 1 Strobh. 117; De-Moranda v. Dunkin, 4 T. R. 119 ; Hamilton v. Dalziel, Wm. Black. 952; Crocker on Sheriffs, § 427; Smith on Sheriffs 17, 18. In this case, however, the failure to return occurred after the writ came back to the hands of the sheriff, and if there had been no default of duty by the deputy, and nothing done by the plaintiff to mislead the sheriff or to make him less vigilant than he would otherwise have been, the sheriff would have been liable to the severe penalties of this statute.

We cannot say that this was the case. The deputy (the agent of the plaintiff) failed to sign the written return indorsed upon the writ, as the statute (Code 1880, § 328) expressly requires him to do. It may be that the sheriff could nevertheless have signed the indorsement and returned the writ himself, but we cannot say that the failure of plaintiffs agent to perform his duty was not calculated to mislead the sheriff and throw him off his guard. He had been induced to appoint the special deputy upon an express promise that if he would do so he should have no trouble and incur no liability by the appointment, and this of itself ivas well calculated to relax his vigilance and cause him to regard the process as practically taken out of his hands. We said in the case of Simms v. Quinn, 58 Miss. 221, that the penalty could not be invoked where the plaintiff had done anything directly or indirectly to mislead the officer. So also in Kentucky, in a case brought under a statute similar to ours, a sheriff was excused for a’failure to return an execution where the plaintiff, being advised by the sheriff that the defendant was insolvent, remarked that he “ did not wish to be put to further expense.” Basset v. Bowmar, 3 B. Mon. 325. It was said by the court that this remark probably caused the officer to relax his vigilance and to treat the execution as worthless. In that State also it is settled in a number of cases that a sheriff is not liable under this statute where the sheriff has lost or mislaid the execution, though it be by his own carelessness. In Ohio it is said that he who invokes the statute “ must bring himself within both the letter and spirit of the law.” Moore v. McClief, 16 Ohio St. 50. Wherever, indeed, statutes of this character are found they are regarded as of a character so highly penal that very slight circumstances are held to exempt officers from their operation. See 25 Am. Dec. 573, and cases cited. The judge below held the facts shown in this case to be sufficient to excuse the sheriff. We cannot say that he erred.

Affirmed.