Opinion
No. 32603.
February 22, 1937.
1. APPEAL AND ERROR.
In deciding a case involving conflicting testimony, reviewing court will leave out of view conflicting evidence given by appellant and his witnesses.
2. SHERIFFS AND CONSTABLES.
Execution plaintiff who gave sheriff execution to levy and, after sheriff refused to levy unless bond were posted, took the papers back and made no further demand for levy held to have lost, by accepting return of the papers, his statutory rights to recover the original judgment from the sheriff, irrespective of either party's mistake of law or fact, since plaintiff thereby prevented such sheriff from subsequently correcting his error (Code 1930, sec. 3317).
3. SHERIFFS AND CONSTABLES.
Officers will be exempted from the operation of statute making such officers liable to execution plaintiff for failure to return execution by very slight circumstances, including any act done by such execution plaintiff which directly or indirectly contributes to the omission of duty complained of (Code 1930, sec. 3317).
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
George Gandy and E.L. Dent, both of Collins, for appellants.
A fair statement of the testimony of Sheriff Crawford and several witnesses may be found in the record, which is, in substance, that Williams did not leave a writ of execution in the sheriff's office with Crawford. If Williams had a writ of execution there, neither the sheriff nor his deputies saw it. The utmost good faith is shown by Sheriff Crawford in trying to execute the several writs, and it would have been impossible for him to have made a written return on the execution when Williams did not carry it to the sheriff's office or leave it there to be executed. Proof that the clerk issued the writ on September 30th when it was not asked to be issued until October 1st and handed to Williams in an envelope, is not sufficient to show delivery of the execution to the Sheriff of Covington county.
The execution must intelligibly refer to the judgment, and must show on its face that such a judgment has been rendered by such a competent court as will justify its emanation. This part of the execution should have the precision of the judgment itself. But where the judgment cannot be identified from the recital the writ is void. The writ must identify the court which rendered the judgment.
23 C.J. 405; 10 R.C.L. 1237, par. 24.
The appellee's name is not even in the execution, and being a stickler to enforce his rights, he should be free from error, even though ignorant as he says.
Section 2961, Code of 1930.
In the case at bar no levy was made, no property seized, and appellee's name not even in the writ. There is no evidence that appellee even told the sheriff that he was the owner of the execution, and they were strangers. We respectfully contend that the statute requires something more than the mere writing of the writ of execution by the clerk. A fair construction of this statute means that the surety must make the affidavit as set out, and the clerk must write on the execution that "it is issued for the use of the surety who paid the judgment," etc. Otherwise, the statute would be meaningless or without an object or purpose.
If section 2961, Code of 1930, had been complied with by appellee, he would have had control of the execution and the sheriff would have been his agent.
17 R.C.L. 171, par. 71.
If we are correct in that, then appellee had no right to direct the sheriff because it did not appear that he had any interest in the execution, and as he brought the writ to the sheriff's office, he had a right to carry it away, making it impossible for the sheriff to make a written return thereon. If appellee wanted to be fair, when he left the sheriff's office, he would have mailed the writ to the sheriff. The burden of proof was upon appellee not only to prove delivery of the writ to the sheriff, but that he did nothing to prevent the sheriff from making levy and written return thereon.
Cox, Sheriff, v. Ross, Adm., 56 Miss. 481; Lechter v. Schor, 50 Mo. 393.
Certainly it was a physical impossibility for the sheriff to return the writ, when appellee had it in his possession.
If it can be said by even a respectable inference that appellee handed the execution to the sheriff with other papers, appellee should have left it with the sheriff, and by appellee taking it and carrying it away, was equivalent to a withdrawal, and thereby making it physically impossible for the sheriff to have anything further to do with it. The impossible is not required of any one.
Simms, Billups Co. v. Quinn, 58 Miss. 221; Skinner v. Wilson, 61 Miss. 90; Watson v. Boyett, 151 Miss. 726, 118 So. 629; 57 C.J. 892 and 888; Tapps v. Bonds, 57 Miss. 281; Jeffreys v. Alexander, 151 Miss. 447, 118 So. 301; 23 C.J. 310, 361, 793.
Welch Cooper, of Laurel, for appellee.
We will say in the beginning that this case is one involving two questions of fact, both of which were decided against the appellants by two courts before the case reached this court. These questions of fact decided by the trial courts (this not being a jury case) are: (a) Was there a delivery of the execution by Williams (appellee here) to the sheriff of Covington county (appellant there)? (b) Did the appellee, Williams, prevent the sheriff from making a return on the execution?
The county judge before whom the case was originally tried and who had the witnesses before him, decided both of these questions against the contention made by appellants. In other words, the first question was decided in the affirmative and the second in the negative. The circuit court approved the finding of facts by the lower court. There was ample testimony to justify the trial court in its finding of fact and, therefore, the case should not be reversed in this court on the questions of fact. This court will accept the finding of facts by the trial court, the said finding of facts being reasonable and not contrary to the overwhelming weight of the testimony.
An execution issued at the instance of a surety who has paid the judgment against his principal is not void because of any failure to endorse thereon that it was issued for the use of the surety.
Edwards Brothers v. Bilbo, 138 Miss. 484, 103 So. 209.
The record will show that the appellee had an execution placed in the hands of the sheriff and that a return of nulla bona was made so promptly as to excite the suspicion that but little, if any, effort was made to locate property on which a levy could be made. Williams could have called this return into question. But he did the safe thing and the course that was best for the sheriff. He got out another execution and then took it with his own hands to deliver to the sheriff. At the same time he undertook to tell the sheriff of the property he believed the defendant in execution owned. The sheriff was evidently peeved at the persistence of the appellee. He refused to make a levy. He would not act on the execution. In one breath he says he was never handed the execution. In the next breath he says that if he got it, he could not execute it because Williams took it away.
We call the court's attention to the fact that the witnesses who support Sheriff Crawford in any manner were not present at the occasion of the second visit. Williams goes into detail about his second visit to the sheriff's office, about dark or a little later, and he says that no one else was present at that time and he says that he again asked the sheriff if he would not take the writ of execution and make the levy under it. He says that the sheriff replied by saying: "Let's wait and see what he does." Evidently it was the view of the sheriff that Williams should wait to see what results the writ of execution brought. This does not excuse him. The law may be harsh, but the court will recall that the sheriff sought the office and that it is a remunerative office and Crawford took the office subject to the penalties imposed upon him by law and that when he failed to make a return on this execution, the law, not the court, places on him the burden of satisfying the judgment. If he fails to make return on the execution, he does so at his peril and that regardless of the fact that the defendant may have had no property whatever and nothing would have been accomplished by the sheriff attempting to make a levy. The case should be affirmed.
Argued orally by George Gandy, for appellant.
The record in this case shows that the Bank of Seminary recovered a judgment in the county court of the Second Judicial District of Jones county against B.T. Williams, S.B. Williams, and G.N. Corley for $175.67, with 8 per cent. interest per annum from that date. On October 18, 1929, B.T. Williams paid this judgment in full. Prior to October 1, 1935, B.T. Williams made an affidavit in compliance with section 2961, Code 1930, that he was a surety for Corley on the original debt for which judgment was rendered against him, and that he paid judgment in full.
On October 1, 1935, B.T. Williams procured from the clerk of that court a writ of execution against Corley on this judgment, wherein the Bank of Seminary was named a judgment creditor, returnable to the county court of Jones county — not specifying which judicial district — at a term of that court to be held on the second Monday of December, 1935. There was no indorsement thereon that Williams, the surety, had paid the judgment. The execution was directed to the sheriff of Covington county. On the same day and about the same time, the clerk, upon the written suggestion of Williams, issued a writ of garnishment, directed to the same sheriff, commanding him to summon as garnishee J.O. Thames, Corley's debtor, to the same term of court as was the execution returnable. The clerk made a copy of the writ of garnishment, both of which were for some reason dated September 30, 1935.
Williams placed the execution, the writ of garnishment, and a copy thereof in an envelope in the clerk's office at Laurel, and from thence proceeded to Collins, in Covington county, to the office of E.H. Crawford, the sheriff of that county.
Under section 3317, Code 1930, after the return day of the execution, Williams filed a motion against the sheriff in that county court, alleging that the sheriff had failed to return the execution at any time, and demanded judgment against the sheriff, and the surety on his bond, for the amount of the original judgment and costs therein, with 8 per cent. interest. The sheriff and his surety appeared and answered the motion, which answer, in effect, denied that the execution had ever been in his hands.
On the hearing of the evidence, the county court entered a judgment against the sheriff and his surety as demanded in the motion. From that judgment, Crawford and his surety appealed to the circuit court, where the case was affirmed; and from that judgment the sheriff and his surety appeal here.
According to the evidence of Williams, he, on October 1, 1935, went to the sheriff's office at Collins, and there said to Crawford, "Here's some papers I want you to execute," taking the three papers placed in the envelope and handing them to the sheriff, who, upon looking at them, said, "He hasn't a damn thing." Williams said, "Are you sure." The sheriff and Williams evidently became angry and had an argument. Williams wanted a "showing" in writing that Corley did not have anything. Crawford told his office deputy, a girl, to look up Corley, and she stated that he had a poll and road tax. The sheriff told Williams, who wanted a truck and some cotton on the property of Corley seized, levied upon, or attached. The sheriff replied that he could not attach the property without a bond, saying, "If you will give a bond, I will go down and attach every damn thing you could put your hands on." "He, the sheriff, gave me back the papers in the envelope." Thereupon Williams left, but upon finding that one paper was missing he returned and asked the sheriff if he had left one of the papers, to which question the sheriff responded. "Yes." Williams requested the sheriff to give him that paper if he was not going to execute it. The sheriff replied, "I have sent it down already." Williams then said, "Hadn't you better take these other papers," to which the sheriff replied, "No, we will wait and see what he does." The paper retained by the sheriff was the writ of garnishment, which he duly served and promptly returned to the proper court. Williams left with the execution, and the sheriff never thereafter saw the papers until the motion was filed against him; nor was any further demand made on him to levy the execution.
The sheriff said, in effect, that the paper he had and saw was the garnishment writ, and that he had never had, or had never seen the writ of execution. He was corroborated more or less by several other parties in his office at the time of the above colloquy.
In deciding this case under the familiar rule, we leave out of view the evidence of the sheriff and his witnesses.
We are of opinion that the execution creditor here so acted as to relieve the sheriff from the penalty imposed by section 3317, Code 1930, by permitting the sheriff to hand the writ of execution back to him and then taking it, of his own volition, entirely under his own dominion and control and never thereafter delivering or sending to the sheriff the process. The sheriff's action might be conceded to be a waiver of tender, but no such question is involved here. Williams, by his own voluntary act, accepted the execution from the sheriff and took it away. Notwithstanding the officer had said he would not execute it without a bond, if Williams desired to enforce this statute to come within its highly penal and harsh terms, he should have stood upon his rights then and there and left the papers with the sheriff. Whether it was a misconception of law or fact on the part of both actors makes no difference. Williams directly and positively by his own act withdrew from the sheriff, at the latter's instance, all control of the process and deprived the sheriff of a chance to correct an error which had the officer been left with control thereof might or might not have resulted in a default on his part.
As said in Simms v. Quinn, 58 Miss. 221: "Those who propose to invoke against public officers the severe penalties of the statute upon which this motion is based, must be very careful to do nothing which directly or indirectly contributes to the omission of duty complained of." See, also, Cox v. Ross, 56 Miss. 481; Skinner v. Wilson, 61 Miss. 90; Watson v. Boyett, 151 Miss. 726, 118 So. 629, 631. In the case last named, the court said, "Very slight circumstances are held to exempt officers from their operation."
The court below should have dismissed the motion.
Reversed and judgment here for appellant.