Opinion
No. 35273.
February 22, 1943.
1. SHERIFFS AND CONSTABLES.
The statute imposing penalty on sheriff for failure to return execution on return day thereof is a "penal statute" which is strictly construed and very slight circumstances are sufficient to exempt sheriff from its operation (Code 1930, sec. 3317).
2. EXECUTION.
An execution becomes ineffective after the return day thereof.
3. SHERIFFS AND CONSTABLES.
Where some two weeks before first day of court, sheriff mailed letter informing judgment creditor that sheriff would make levy as soon as, but not until, sheriff received indemnifying bond, and asked judgment creditor to write sheriff about the matter, and the judgment creditor's address was in Illinois, but judgment creditor did not reply to letter, the sheriff was properly relieved of liability for failure to return execution to return term of circuit court (Code 1930, secs. 1762, 3033, 3317).
4. APPEAL AND ERROR.
Admitting proof of contents of letter by introduction of a copy thereof was not error although no notice had been given to produce original, where objection in trial court to copy was not placed on ground of absence of notice to produce original.
5. APPEAL AND ERROR.
Error in admission of evidence can be predicated only on objection thereto specifically pointing out the infirmity therein except where on the face of the evidence in its relation to the rest of the case there appears no purpose whatever for which it could have been admissible.
APPEAL from the circuit court of Marion county, HON. J.C. SHIVERS, Judge.
Austin Austin, of Jackson, for appellant.
The learned trial court erred in admitting the carbon copy of the letter purportedly written to the appellant by the appellee, Oscar James Foxworth, calling on the appellant to furnish him with an indemnifying bond, as same was inadmissible as not being the "best evidence," because of the absence of timely notice to appellant to produce the original of said alleged letter, and further because from his own admissions appellee, Foxworth, had found no property on which to levy on the 23rd day of August, as shown by his notation on the back of the execution, which was four days prior to the time that he allegedly called on them for an indemnifying bond.
National Cash Register Co. v. Giffin, 192 Miss. 556, 6 So.2d 605; Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; Kanson Hat Cap Mfg. Co. v. J.D. Blakeney Son, 142 Miss. 851, 108 So. 139; Miller v. Cullifer, 159 Miss. 712, 132 So. 327; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, suggestion of error overruled 146 So. 134; Citizens Bank v. Callicott, 178 Miss. 747, 174 So. 78; 20 Am. Jur. 395, sec. 442.
The rule is well settled in this state that 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.
Cox v. Ross, 56 Miss. 481; McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; Everett et al. v. Duckworth et al., 179 Miss. 516, 176 So. 387.
Rawls Hathorn, of Columbia, for appellee.
We respectfully submit that this copy, under the proof of mailing, etc., was admissible and was direct evidence that the letter had been written to appellant, properly addressed, and deposited in the United States mail, postage fully paid, and the proof that the sheriff's return address was on the envelope and that it was never returned was prima facie proof that appellant received the letter.
National Cash Register Co. v. Giffin, 192 Miss. 556, 6 So.2d 605; Kanson Hat Cap Mfg. Co. v. J.D. Blakeney Son, 142 Miss. 851, 108 So. 139.
The general rules of pleading and notice do not apply in the case at bar.
Watson v. Boyett, 151 Miss. 726, 118 So. 629; Lewis v. Garrett, 5 How. (6 Miss.) 434.
Since this letter was mailed, postage prepaid, and was not returned to the writer, the law presumes that it was delivered to the W.T. Rawleigh Company, and this presumption establishes the fact that the W.T. Rawleigh Company did receive the letter, since there is no denial of or contradiction of this presumption.
The W.T. Rawleigh Company not only declined to give an indemnifying bond, but did not even do the sheriff the courtesy of replying to his request. If the Rawleigh Company had replied to the sheriff denying the sheriff's right to demand the bond, or had even replied refusing to give the bond, then it might be that this severe penalty would be visited on the sheriff, and the statutory duty might then be said to rest upon the sheriff to return the writ on or before the return day, showing either that he had found nothing or that he had not executed it because the plaintiff in execution had refused to give an indemnifying bond; but the W.T. Rawleigh Company did neither one. They, by their silence, let the sheriff wait for a reply from them and a bond until the return day had passed and then, after lulling the sheriff to sleep by its inaction, this Shylock demands his pound of flesh.
Was the act of the W.T. Rawleigh Company, as set out above, sufficient to relieve the sheriff of the harsh and severe penalty of the statute? We submit with confidence that it was.
Simms, Billups Co. v. Quinn, Sheriff, 58 Miss. 221; Skinner v. Wilson, Sheriff, 61 Miss. 90; Watson v. Boyett et al., supra; Forniquet v. Tegarden, 24 Miss. 96.
Argued orally by B. Galloway Austin, for appellant, and by C.V. Hathorn, for appellee.
The question for decision in this case is whether the reasons shown herein for the failure of appellee, Foxworth, as sheriff, to return an execution to the return term of the circuit court is such a reason as will relieve him of the penalty imposed for such failure by Section 3317, Code of 1930.
On May 6, 1941, Rawleigh Company, Inc., plaintiff-appellant, procured a judgment in the circuit court of Marion County, Mississippi, against Levi Johnson, G.H. Sartin and Enoch Pittman for $246.29 and costs.
On August 19, 1941, execution issued on that judgment, returnable September 15th, and was placed in the hands of Foxworth, sheriff, for service. The sheriff delivered the execution to a deputy, who reported to the sheriff four days later that he had investigated the conditions; that Pittman did not live in Marion County and had no property therein; that Johnson had no property subject to execution; and that Sartin, when the deputy was about to serve the execution on his property, said to him: "I've got some stuff here but my land is under a deed-of-trust and some of these cattle are my son's and some are my wife's and if you latch onto this stuff I'll see that you get a law-suit because I'm going to try to set that judgment aside"; whereupon, the deputy did not seize the property.
On August 27, 1941, according to the undisputed proof, the sheriff mailed to appellant the following letter:
"Columbia, Miss. "August 27th, 1941.
"The W.T. Rawleigh Company, "Freeport, Ill.
"Gentlemen:
"A few days ago the Clerk of the Circuit Court of this County issued an execution on a judgment rendered in the Circuit Court of this County in your favor and against Levi Johnson, G.H. Sartin and Enoch Pittman, the judgment being for $246.29 and costs. This execution has been placed in my hands and is returnable to the September Term, 1941, of this Court. The only parties living in this county are Levi Johnson and G.H. Sartin. Johnson has nothing on which to levy. Sartin has some property in his possession, some of which he claims as exempt and some of which he says does not belong to him. He also claims that the judgment is void and he says he has employed attorneys and has filed or is filing, a motion to set the judgment aside. He threatens to hold me liable on my bond if I levy on any of this property.
"Under the circumstances, gentlemen, I will not make the levy unless you furnish me an indemnifying bond to protect me against damage or suit by Mr. Sartin, if I should make the levy. Just as soon as you furnish me with indemnifying bond I will proceed with the levy of the Sartin property, but until I do I will hold the execution unexecuted.
"Please let me hear from you at once.
"Yours very truly,
___________ "Sheriff"
The sheriff did not hear from appellant. The execution was not returned and filed by the sheriff with the circuit clerk until after the September term of court had expired. The exact date it was filed is not shown in the record. Apparently it was between October 18th and November 4, 1941, before the present motion against the sheriff and his bondsman was filed March 30, 1942. But when the execution was filed, it had upon it the following return: "I hereby certify that after diligent search and inquiry I find no property in possession of Levi Johnson or G.H. Sartin that is subject to execution. I further certify that Enoch Pittman is not a resident of Marion County and owns no property in said county. This the 23rd day of August, 1941. O.J. Foxworth, Sheriff By: B.C. Stringer, D.S." It is not shown just when this return was actually made on the execution. It was dated August 23, 1941, because that was the day the deputy sheriff reported the foregoing circumstances to the sheriff.
The question is whether the sheriff was justified under these circumstances in not returning the execution into court at the September term thereof.
Section 3317 reads in part: "If any sheriff . . . 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 . . . 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 . . ."
Section 3033 is in part as follows: "If any officer shall levy an execution . . . and a doubt shall arise whether the right to the property be in the defendant or not, such officer may demand of the plaintiff a bond, . . ." to indemnify himself and the property owner for damages resulting from wrongful seizure of the property "and if such bond be not given on or before the day of the sale or the return-day of the attachment, the officer shall be justified in releasing the levy and delivering the property to the party from whose possession it was taken; but the plaintiff, or his agent or attorney, shall have reasonable notice, in writing, before the day of sale or return-day of the writ, that the bond is required."
Section 1762, Code of 1930, provides: "If any sheriff . . . be about to levy an execution . . . on any personal property claimed as exempt, and a doubt shall arise as to the liability of the property to be sold . . ." the sheriff may demand of the plaintiff a bond to indemnify himself and the property owner against damage for the wrongful seizure of the property, "and if such bond be not given, after reasonable notice, in writing, from the officer to the plaintiff, his agent or attorney, that it is required, the officer may refuse to levy . . ."
In the case of Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250, 253, the last case decided by this court under Section 3317, the court said "that the statute here invoked is highly penal and that one seeking to recover thereunder must bring his case clearly within its terms," and "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."
In the case of Watson v. Boyett, 151 Miss. 726, 118 So. 629, the sheriff was relieved of the penalty under this statute for failure to return the process to the return term because the plaintiff in execution had negotiated with the sheriff who had the execution with the object of selling to the sheriff the judgment, the court saying that such negotiations were calculated to make the sheriff less diligent in the performance of his duties.
In the case of Crawford et al. v. Bank of Seminary, 178 Miss. 129, 172 So. 750, 751, the sheriff told the plaintiff, when the plaintiff was delivering to him the execution, that the judgment-defendant had nothing but that if the plaintiff would give a bond, he, the sheriff, would seize whatever he could find, and the plaintiff carried away the execution, although he left with the sheriff a writ of garnishment. In that case, the court quoted from Simms v. Quinn, 58 Miss. 221, saying: "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."
The letter in the case at bar was mailed to appellant some two weeks before the first day of the court. Said Section 1762 gives the sheriff the right to demand an indemnifying bond, and if it is not given "after reasonable notice in writing" the sheriff can refuse to levy. Assuming, as we must, there being no proof to the contrary, that appellant received this letter, we are unable to say that two weeks was an unreasonable time for the sheriff to wait for appellant to furnish this bond, in view of the fact that appellant's address is in the State of Illinois. We can understand that under the circumstances here the sheriff might reasonably have expected a reply to this letter during this period. It will be noted that the letter informed appellant the sheriff would make the levy as soon as, but not until, he received the bond, and asked appellant to write him about the matter.
In the Watson and Crawford cases, supra, the writs were not returned until after expiration of the terms of court to which they were directed. Since the execution becomes ineffective after the return-term thereof, it is doubtful whether a sheriff should be excused under any circumstances from filing the process not later than its return-day, whether the levy has been made or not, showing in his return thereon what has happened. But these cases have held otherwise, and, construing this statute strictly, as we must, we cannot say the lower court was in error in relieving the sheriff of liability in this case.
Proof of the contents of the letter of August 27th was made by introducing a copy of such letter. Appellant strenuously contends here that this was error because no notice had been given it to produce the original. Appellant's contention would be well taken had the objection been placed upon that ground in the trial court. Not only was the objection there not placed upon that ground but the reason given was ". . . the statute says when the sheriff can require a bond of indemnity and it is clear and concise in its language, and it is not shown here that he complied with the terms of the statute."
In Jackson v. State, 163 Miss. 235, 140 So. 683, 684, this court said "Except as hereinafter stated, error in the admissibility of evidence can be predicated only on an objection thereto, specifically pointing out the infirmity therein," giving the reasons underlying the rule, and citing a number of Mississippi cases supporting it, saying further that the only exception to the rule is that when "on the face of the evidence, in its relation to the rest of the case, there appears no purpose whatever for which it could have been admissible . . ." This evidence is not within that exception.
Affirmed.