Opinion
No. 34378.
February 10, 1941.
1. SHERIFFS AND CONSTABLES.
Though statute providing for recovery of damages for failure of sheriff to return an execution according to its command does not require either allegation or proof of damages, nevertheless it is necessary to allege and prove that sheriff violated his duty by not making a return on the writ on the return day thereof, and his liability cannot arise until he has failed on that day to make the return (Code 1930, sec. 3317).
2. SHERIFFS AND CONSTABLES.
Where sheriff resigned several weeks before return day of execution, duty imposed on him by statute of making return on return day was not violated while he was in office and, therefore, neither he nor his surety could be held liable under the statute for failure to make return on return day (Code 1930, sec. 3317).
3. SHERIFFS AND CONSTABLES.
Where sheriff resigned several weeks before return day of execution, it was his duty to deliver the writ to his successor, if it remained unexecuted at expiration of his term of office or on resigning (Code 1930, secs. 3317, 3323).
4. SHERIFFS AND CONSTABLES.
The statute providing for recovery of damages from sheriff on motion for sheriff's failure to return an execution according to its command is highly "penal" and one seeking to recover thereunder must bring his case clearly within its terms, and very slight circumstances exempt officers from its operation (Code 1930, sec. 3317).
5. SHERIFFS AND CONSTABLES.
Where a process or writ is placed in hands of a sheriff or constable for service or execution, he is liable if he fails to return it within time allowed by law for making return, and fact that return is made after expiration of such time does not relieve him of liability, but to enforce such liability, it must be shown that the writ was actually placed in his hands for execution and that he actually failed to return it on return day (Code 1930, sec. 3317).
6. DISCOVERY.
Where sheriff resigned several weeks before return day of execution, judgment creditor, moving under statute to recover damages for sheriff's failure to return execution according to its command on return day, was not entitled, in a court of law, to a discovery from the former sheriff and his successor, respectively, as to which of them was liable (Code 1930, sec. 3317).
7. DISCOVERY.
A pleading seeking a discovery which fails to state a cause of action against any particular defendant cannot be maintained, even in the chancery court, which is the appropriate forum for obtaining such relief in a proper case.
8. DISCOVERY.
A person is not obliged to reveal anything in answer to a bill of discovery in a court of equity which may subject him to a forfeiture or penalty, but he is excused from making discovery not only of that which must, but even of that which may, subject him to a penalty.
9. SHERIFFS AND CONSTABLES.
On a statutory motion to recover damages for failure to return execution on return day against former sheriff, and his successor, allegations that if former sheriff ever turned execution over to his successor, movants did not know when, nor whether it was in person or by mail, that neither the execution nor notation on writ showed when successor sheriff received it, that movants did not have knowledge of facts, and that defendant sheriffs refused to give information, were insufficient as against demurrers, since presumption that former sheriff performed duty by delivering execution to successor was neutralized by presumption of equal dignity that successor would have performed his duty by making return at time required by law (Code 1930, sec. 3317).
10. EVIDENCE. Records.
If sheriff who resigned several weeks before return day of execution delivered execution to successor on resigning, there was presumption that successor gave him a receipt, as required by statute, and judgment creditor who moved to recover damages for failure of former sheriff and his successor to return execution according to its command could have obtained an inspection of receipt in hands of former sheriff or could have had an inspection of public records in sheriff's office to ascertain facts which records are presumed to disclose (Code 1930, secs. 744, 3317, 3323).
APPEAL from the circuit court of Copiah county, HON. J.F. GUYNES, Judge.
Austin Austin, of Jackson, for appellant.
The allegations in the motion when taken and considered in connection with Sections 3317 and 3323 of the Mississippi Code of 1930, together with the authorities cited thereunder clearly make out a case against these defendants, and more particularly so since the demurrers admit every allegation well pleaded.
The motion alleges sufficient facts to hold the defendants liable, and if both are not liable it is incumbent upon them to show by proof which one of the defendants is not liable.
Cox v. Ross, 56 Miss. 481.
The penalty denounced against an officer for failing to return final process is in no manner dependent upon any actual damage sustained.
Steen v. Briggs, 3 S. M. 326; Morehead v. Holliday, 1 S. M. 625; Beall v. Shattuck, 53 Miss. 358; Sec. 227, Code 1930.
If a sheriff or other officer neglects to return an execution by the return date, he is liable unless the plaintiff in execution does something to justify his delay.
McIntosh v. Munson Road Machinery Co., 145 So. 731.
If sheriff does not comply with the established method of returning execution, sheriff has burden of proving, by preponderance of the evidence, his excuse for such withholding.
Code 1930, Secs. 3317, 3318; Everett et al. v. Duckworth et al., 176 So. 387.
Unless a sheriff returns an execution in the usual manner on or before the return date, the burden is upon the sheriff to show by a preponderance of the evidence his reason or excuse for not so doing. The mere notation on the back of the execution in question here, made by Lotterhos, does not amount to a return in the usual manner, nor does it show affirmatively as his demurrer alleges as to what date it was handed to him, and whether or not said date was sufficiently prior to the return date for him to have made a levy or return thereon.
The defendants alone are in possession of the knowledge as to when Hester handed the execution, as to date thereof, to Lotterhos, and they will not disclose this fact and have not done so to this plaintiff. In our motion we asked that the defendants be required to answer and discover unto the court the true facts in this respect, but the court sustained their demurrers and cut appellant off from this information. This is the only way appellant can get this information, as no execution docket was kept by the defendants or either of them, nor does Sheriff Lotterhos show when he received said execution. We submit that under the constitution and statutes since this motion must of necessity be filed in the circuit court, because said execution was returnable to the said circuit court, that said circuit court had the right to assume equity jurisdiction in this motion in order that justice might be done to all parties.
Butler Snow, of Jackson, for appellees, W.E. Hester and National Surety Corporation.
The motion does not show that Hester violated any duty in failing to return the execution and states no cause for relief as against Hester and his surety.
The statute is a highly penal one.
Cox v. Ross, 56 Miss. 481; Bank of Hickory v. May, 119 Miss. 239; Watson v. Boyett, 151 Miss. 726; Crawford v. Bank of Seminary, 178 Miss. 129; Union Motor Car Co. v. Farmer, 161 Miss. 847.
Penal statutes are strictly construed, and one who seeks a penalty must bring himself within the literal terms of the statute.
Statutes, Miss. Digest, 241; Watson v. Boyett, 151 Miss. 726; Simms v. Quinn, 58 Miss. 221; Skinner v. Wilson, 61 Miss. 90; Union Motor Car Co. v. Farmer, 161 Miss. 847; Crawford v. Bank, 178 Miss. 129; McInnis v. Parker, 183 Miss. 648.
Had Hester remained in office he would have had until fifteen days before July 24, 1939 in which to execute the writ and the 24th day of July, 1939, in which to make his return thereon.
Tapp v. Bonds, 57 Miss. 281; 57 C.J. 782, Sec. 144; State ex rel. v. Prewitt, 82 Mo. 260; Tucker v. Bradley, 15 Conn. 46; Cake v. Cannon (Del.), 2 Houston 427; Fondrin v. Planters' Bank (Tenn.), 7 Hump. 447; Neil v. Beaumont (Tenn.), 3 Head 556; State for Use of Noblin v. Parchman (Tenn.), 3 Head 609; Sherill v. Goodman (Tenn.), 3 Hump. 419.
The presumption is that Hester complied with the law.
Orleans Dredging Co. v. Frazie, 173 Miss. 883; Bd. of Sup'rs, DeSoto County, v. Jones, 103 Miss. 602; Slay v. Lowery, 152 Miss. 356; Scott v. Dubois, 158 Miss. 245; Trotter v. Frank P. Gates Co., 162 Miss. 569; Wood v. State, 169 Miss. 790; Brotherhood of R.R. Trainmen v. Agnew, 170 Miss. 604; Town of Magee v. Mallett, 178 Miss. 629; Bousquet v. Brown, 152 Miss. 171; Trahan v. State Highway Com., 169 Miss. 732; Bishop v. Chickasaw County, 182 Miss. 147.
Whether Hester did or did not turn over the execution to his successor upon his induction into office is not the question here involved. The suit is against Hester and his surety for failure to return the execution to the court on July 24, 1939, more than six weeks after he ceased to be sheriff and six weeks after his successor had qualified. Legally speaking, Mr. Hester's term had expired, and if he had made a return at any time after June 12, 1939, it would not have been an official act and would have been void.
Appellant could not file a bill of discovery under the statute in the chancery court because recovery can be had, under the terms of the statute, only before the court to which the execution is returnable. It cannot have discovery in the circuit court because that court is without jurisdiction to entertain such a proceeding. But if the circuit court had mistakenly assumed jurisdiction of the discovery sought, it could not avail appellant because the effort is to discover which one of the two appellees is liable for the wrong complained of. Discovery will not be awarded even in chancery in such a situation.
George v. Solomon, 71 Miss. 168.
Henley, Jones Woodliff, of Hazlehurst, for appellees, J.L. Lotterhos and National Surety Corporation.
Section 3317, Code of 1930, is in derogation of common law and should be strictly construed and in order to entitle a movant to remedy thereunder all the statutory requirements must be strictly complied with.
57 C.J., Sec. 659; Connell v. Lewis, 1 Miss. 251; Skinner v. Wilson, 61 Miss. 90.
No liability exists against Lotterhos because motion wholly fails to show process was delivered to him in time to permit service of same.
57 C.J., Sec. 470; Code of 1930, Sec. 3323; People ex rel. Barclow v. Adams, Sheriff, 6 Hill (N.Y.) 236; Destrehan v. Garcia, Sheriff (La.), 2 Rob. 291; 51 C.J., Sec. 892; Rash v. Parris, 4 Del. (Har.) 81; Crawford v. Bank of Seminary, 178 Miss. 129, 172 So. 750.
Summary remedy should not be enforced in a doubtful case.
Skinner v. Wilson, 61 Miss. 90; 57 C.J., Sec. 702.
Movant is not entitled to discovery.
First National Bank of Meridian v. Phillips, 71 Miss. 51, 15 So. 29; Calendar v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119; George v. Solomon, 71 Miss. 168, 14 So. 531; Griffith's Chan. Practice, Sec. 429; Bank of Hickory v. May, 119 Miss. 239, 80 So. 704; Code of 1930, Sec. 3317; Story's Equity Pleading (10 Ed.), Secs. 521, 575; 18 C. J., Sec. 30; 17 Am. Jur. 23; Blackmore v. Collins et al., 281 Fed. 629; H. Wagner v. Mali et al., 74 F.2d 666; F. Speidel Co. v. N. Barstow Co., 232 Fed. 617; Wilson v. Union Tool Co., 275 Fed. 624.
Argued orally by B. Galloway Austin, for appellant, and by George Butler and George Woodliff, for appellees.
This appeal is from a judgment of the circuit court of Copiah County sustaining demurrers to a motion filed by the appellant, W.T. Rawleigh Company, Inc., for judgment against the appellee, W.E. Hester, former sheriff of said County, and the surety on his official bond, National Surety Corporation of New York, and against the appellee, J.L. Lotterhos, former sheriff of said County as successor in office to the said W.E. Hester and the surety on his official bond, the National Surety Corporation aforesaid, for the sum of $763.69 with legal interest, five per cent damages and costs, because of the alleged failure of one or the other of the said officers to make a return as required by law on an execution placed in the hands of the said W.E. Hester, as sheriff, on March 28, 1939, which had been issued pursuant to a judgment theretofore recovered in said court by the appellant against J.H. Foster et al. for the principal sum hereinbefore mentioned. Upon the sustaining of the demurrers, the appellant declined to amend or plead further, and the motion was by the court finally dismissed.
It is alleged in the motion that the execution was returnable on July 24, 1939; that Hester resigned on the ____ day of ____, 1939, and that Lotterhos duly qualified as his successor in office on June 12, 1939, and which date of qualification the motion alleges was sufficiently early to have enabled Lotterhos to make a return on said execution on or before the return day, July 24, 1939, "if said execution was turned over to him at that time;" and that Lotterhos on July 25, 1939, being the next day after the return-day of the execution, as aforesaid delivered the writ to the clerk of the court with a notation thereon in the following words, "This execution returned not executed as same did not come into my hands until too late for execution. July 25, 1939, J.L. Lotterhos, sheriff."
It is expressly alleged in the motion that the movant asks a judgment against the said officers and their sureties in the amounts prayed for "for their failure to return said execution, as provided for under Section 3317 of the Mississippi Code of 1930." That section provides that, "If any sheriff, coroner, or other officer, shall fail to return any execution to him directed, on the return-day thereof, the plaintiff in execution shall be entitled to recover judgment against the sheriff, coroner, or other officer and his sureties, for the amount of the execution and all costs, with lawful interest thereon until the same shall be paid, with five per centum on the full amount of the judgment for damages, to be recovered by motion before the court to which the execution is returnable, on five days' notice first being given thereof . . ." It will therefore be observed that Hester had the whole intervening period, between the time the execution was placed in his hands and the return-day thereof, within which to make the return thereon, even though he was required to execute the writ without unreasonable delay. He was not required to make the return at any time before the return-day on July 24, 1939, nor could he have made it on that day for the reason that he had resigned from the office of sheriff several weeks prior thereto. Judgment is not sought against him and his surety for a failure to execute the writ as provided for by Section 3316, Code of 1930, wherein a penalty for failure so to do is allowed in favor of the party aggrieved in any sum not exceeding $100, and for all damages thereby sustained. Nor does the movant allege any failure whatever on the part of Hester to execute the writ or that the movant has sustained any damages by reason of any delay or failure to execute the same. While Section 3317, supra, under which the proceeding here is brought does not require either allegation or proof of damages sustained, nevertheless, it is necessary under that section to allege and prove that Hester violated his duty while in office by not making a return on the writ on the return-day thereof. His liability could not have arisen until he had failed on that day to make the return, even if he had continued in office. State to Use of Nolin v. Parchman, 3 Head 609, 40 Tenn. 609; Neil v. Beaumont, Vanleer Co., 3 Head 556, 40 Tenn. 556. No cases from our own state that are directly in point are cited by counsel, but the statute here involved is sufficient authority for holding that the duty imposed upon Hester by the statute was not violated while he remained in office, and that neither he nor his surety can be held liable in this case.
The duty imposed upon Hester in the premises was to deliver the writ to his successor, if it remained unexecuted at the expiration of his term of office, or on resigning, as required by Section 3323, Code of 1930. It is not alleged that he breached his duty in that regard; nor could there be a recovery against him in this proceeding even if he had not complied with that statute.
As to the alleged liability of Lotterhos and his surety, it was charged in the motion that "if W.E. Hester ever turned the execution over to his successor, J.L. Lotterhos, we do not know when it was nor how he delivered same, whether in person or by mail, and if his successor, J.L. Lotterhos, received this execution prior to July 25, 1939, then the execution, nor the excuse (meaning the notation made by Lotterhos on the writ heretofore quoted) for not making return on said execution, do not show when he received it, but movants charge that J.L. Lotterhos, as sheriff, either had the execution or he did not have it prior to July 24, 1939; that knowledge of the facts about whether or not this execution was delivered by W.E. Hester to his successor, J.L. Lotterhos, is not known to movants and defendants have refused to give such information, and movants have been unable to obtain such information otherwise; that the defendants by answer to this motion can disclose the real facts as they only know the material facts from which the Court can determine upon whom liability rests."
This Court held in the cases of Bank of Hickory v. May, 119 Miss. 239, 80 So. 704, and Watson v. Boyett, 151 Miss. 726, 118 So. 629, that the statute here invoked is highly penal and that one seeking to recover thereunder must bring his case clearly within its terms. Moreover, the Court said in the case of Skinner v. Wilson, 61 Miss. 90, that, . . . 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." The rule is announced in 57 C.J. section 470, that: "Where a process or writ is placed in the hands of a sheriff or constable for service or execution, he is liable if he fails to return the same within the time which is allowed by law for the making of his return thereon, and the fact that a return is made after the expiration of such time does not relieve him of liability for his default; but in order to enforce such liability, it must be shown that the writ was actually placed in his hands for execution, and that he actually failed to return it on the return-day." To the same effect are the cases of People ex rel. Barclow v. Adams, Sheriff, 6 Hill, N.Y. 236, and Destrehan v. Garcia, 2 Rob., La., 291.
Nor was the movant entitled in a court of law to a discovery from the sheriffs respectively, as to which of them was liable. Moreover, it was held in the cases of George v. Soloman, 71 Miss. 168, 14 So. 531, and First National Bank of Meridian v. Phillips, 71 Miss. 51, 15 So. 29, that a pleading seeking a discovery which fails to state a cause of action against any particular defendant cannot be maintained even in the chancery court, — the appropriate forum for obtaining such relief in a proper case. It is said in Griffith's Chancery Practice, Section 429, that: ". . . Although it may be true that the facts and the proof thereof may be within the exclusive possession and keeping of the defendant and although for that reason it may be difficult to state them in such a way as to disclose a meritorious cause of action, nevertheless, since discovery is merely a means to the end of making the necessary proof of a case for relief, the complainant must show himself entitled to relief against the party made defendant without which showing the bill would be only a fishing bill, and therefore not maintainable. In the very nature of orderly judicial procedure, a discovery could not be permitted merely to search for grounds upon which to base a suit. . . ."
As to whether or not the information sought by the movant can be obtained by means of discovery in a court of equity where the object is to enforce the collection of a penalty, see Story's Equity Pleading, (10 Ed.), Secs. 521, 575; 18 C.J Sec. 30, p. 1071; and 17 Am. Juris. 23, where it is said that: "A person is not obliged to reveal anything in answer to a bill of discovery which may subject him to a forfeiture or penalty; he is excused from making discovery not only of that which must but even of that which may, subject him to a penalty."
If it be said that the pleading here as against Lotterhos and his surety is aided by the presumption that Hester as a public officer performed his official duty by delivering the execution to his successor as required of him by Section 3323 of the Code, supra, at the expiration of his term of office, or on resigning, then the effect of this presumption is neutralized by the similar presumption that Lotterhos as a public official would have performed his duty by making the return thereon at the time required by law if he had received the same in time so to do. The two presumptions being of equal dignity, the motion is left without an allegation that Lotterhos ever received the execution at all on or before the return-day thereof. If Hester delivered it to Lotterhos upon resigning from office, there is also a presumption that the latter gave him a receipt, as he was required to do by Section 3323 of the Code of 1930, supra, which would no doubt disclose the date the writ was received by Lotterhos, and the appellant could have obtained an inspection and copy of the receipt in the hands of Hester as provided for by Section 744 of said Code; and, without the aid of this statute, an inspection could have been had of the public records in the sheriff's office to ascertain the facts which such records are presumed to disclose as to when the succeeding sheriff received this and other process. It is not alleged that no such records were kept.
We are therefore of the opinion that the allegations of the motion were insufficient, and that no error was committed by the court below in sustaining the demurrers, and in dismissing the proceeding upon the refusal of the appellant to amend or plead further.
Affirmed.