Trotter v. Parker

38 Miss. 473 | Miss. | 1860

Handy, J.,

delivered the opinion of the court.

This was a motion under the statute by the plaintiff in error against the defendant in error, for money collected by the latter as sheriff, upon an execution in favor of the plaintiff, and on which he had made return that he had levied the money. The motion was made against the sheriff and his surety on his bond; and after service of notice of it, the sheriff appeared at the return term of the motion, which was also the return term of the execution, and moved the court for leave to amend his return; which motion was granted, the plaintiff excepting. The return was thereupon amended by stating in substance that the sheriff had levied the execution on $209 79 in his hands and collected by him on an execution in favor of M. Smith, administrator of John S. Smith (who was the defendant in the execution of the plaintiff on which this motion was founded); and that, being notified by said Smith not to pay the money to this execution on the ground that the estate of Smith was insolvent, he returned the money into court, and asked direction as to its payment. The defendants then filed a plea to the motion, stating that by the said amended return, the said sheriff, after levying the execution, had returned it into court, and asked an appropriation of the money or direction as to its payment. To this plea, the plaintiff filed a demurrer, which was overruled, and leave given him to reply, which he declined; and thereupon the motion was dismissed ; and the plaintiff sued out his writ of error.

The first error assigned is, that the court allowed the sheriff to amend his return upon the execution. This was done after the motion was1 instituted, but at the return term of the execution. There was no error in permitting the- amendment to be made. During that term, at least, the execution was under the power of the court, and the return could not be considered as complete until it had received the sanction of the court or the term had elapsed; for in legal contemplation, the return is presumed to be received and sanctioned by the court.

The next error assigned is the overruling of the demurrer; and we think this error well assigned.

The plea refers to the amended return as a justification for the failure to pay the money on the execution, and relies on the fact that in accordance with that return, the sheriff had asked the court for direction as to the appropriation of the money. But this clearly shows no justification. For, 1st, the return does not show that the estate of Smith, the defendant in the execution, was insolvent in fact, hut simply states that the defendant had notified him that the estate was insolvent, and not to pay the money. 2d. It neither appears that the estate had been declared insolvent by the Probate Court, nor, if so declared, that it was done before the levy of the execution. Both of these things were necessary to he done in order to deprive the plaintiff of the money levied under his execution. Bass v. Heard et al. 33 Miss. 131. 3d. The plea shows no reason for submitting the question of the appropriation of the money to the court. It should have stated the facts upon which the sheriff claimed that he was justified in not paying the money to the plaintiff ; and the court could then have determined upon the motion whether he ivas justified by those reasons in refusing to pay the money, and whether the plaintiff was entitled to it. The demurrer should, therefore, have been sustained to this plea.

It is further insisted that judgment should be rendered here for the plaintiff on the motion. But the practice is, upon a demurrer sustained to a ¡olea, that tho defendant be allowed to plead further. And.as the defendant may be able to show a state of facts in relation to the estate of Smith, deceased, which would debar the plaintiff of the money, by reason of the insolvency of the estate within the rule above stated, the judgment will he reversed, and the cause remanded for further answer by the defendants.