Opinion
No. 35541.
January 24, 1944.
1. SHERIFFS AND CONSTABLES.
On statutory motion to recover damages for sheriff's failure to return execution before return date, the presumption that circuit clerk delivered the writ to the sheriff with reasonable promptness was neutralized by presumption that had the sheriff received the writ before return day he would have returned it within the time required, and in absence of evidence showing when writ was delivered to sheriff movant was not entitled to judgment (Code 1930, secs. 3317, 3327).
2. SHERIFFS AND CONSTABLES.
Statute providing for recovery of damages from sheriff on motion, for failure to return execution according to its commands, is highly penal, and one seeking to recover thereunder must bring his case fairly within its terms, and very slight circumstances exempt officer from its operation (Code 1930, sec. 3317).
APPEAL from the circuit court of Amite county, HON. R.E. BENNETT, Judge.
H.L. Austin and George S. Hamilton, both of Jackson, for appellant.
This is a suit against a sheriff and the surety on his official bond for the statutory penalty provided by Section 3317 of the Code of 1930, for the failure of a sheriff to return an execution on or before the return day thereof. Execution on the judgment was issued by the clerk on April 24, 1942, returnable on the second Monday of June, 1942, which was June 8, 1942. The execution was returned by the sheriff on December 26, 1942, more than six months after the return day thereof.
It is our contention that the appellant has made out a prima facie case, and that the appellees should have been required to offer some evidence in explanation of the sheriff's failure to return the execution on or before the return day, or else appellees' motion to exclude should have been overruled.
The statute (Code of 1930, Sec. 3317) is in simple language, and its meaning and purpose are clear. This court in numerous cases has not hesitated to enforce the statute against sheriffs who failed to perform their legal duty. That the statute is highly penal is for a purpose and does not offer an excuse for its non-enforcement.
Beall v. Shattuck et al., 53 Miss. 358.
It is not necessary, under the statute, to show that any actual damage was sustained by reason of the sheriff's failure to return the execution on or before the return day.
Cox v. Ross, 56 Miss. 481.
The burden of proof to establish the fact that the judgment creditor directed a withholding of an execution is upon the sheriff, and if he does not comply with the established method of returning an execution, the burden is upon him to establish, by a preponderance of the evidence, his excuse for such withholding.
Everett et al. v. Duckworth et al., 179 Miss. 516, 176 So. 387.
The clerk must have known his legal duty with respect to the execution after having issued it, and we submit that it will be presumed that he performed his legal duty and placed the execution in the hands of the sheriff.
Code of 1930, Sec. 3011.
In the absence of evidence to the contrary, there is always a presumption that official acts, including ministerial acts, or duties have been properly performed, and in some states this presumption is expressly provided by statute.
Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 604, 155 So. 205; Slay v. Lowery, 152 Miss. 356, 119 So. 819; Town of Magee v. Mallett, 178 Miss. 629, 174 So. 246; Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395; Trotter v. Frank P. Gates Co., 162 Miss. 569, 580, 139 So. 843; 22 C.J. 130, Sec. 69; 31 C.J.S. 798, Sec. 146.
Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and control it, or he will fail.
Harris v. Sims, 155 Miss. 207, 218, 124 So. 325.
We respectfully submit that the appellant at least made out a prima facie case against the sheriff and his surety, and that the court below erred in excluding the appellant's evidence and dismissing the case without having heard any testimony from the appellees.
Gordon Gordon, of Liberty, and Fred A. Anderson, Jr., and J.T. Lowrey, of Gloster, for appellees.
It is the contention of the appellant that the evidence in the record makes a prima facie case, but it is the contention of the appellee that the appellant's evidence does not establish the liability of the sheriff for the penalty claimed.
The plaintiff in execution did not prove, as he was required to do, that the writ of execution was actually placed in the sheriff's hands and that he actually failed to return it on the return day thereof.
The statute (Code of 1930, Sec. 3317) is a highly penal one, and has so been construed by this court.
Cox v. Ross, 56 Miss. 481; Bank of Hickory v. May, 119 Miss. 239, 80 So. 704; Watson v. Boyette, 151 Miss. 726, 118 So. 629; Crawford v. Bank of Seminary, for use of Williams, 178 Miss. 129, 172 So. 750; Union Motor Car Co. v. Farmer, 161 Miss. 847, 138 So. 579.
Section 3317, Code of 1930, is in derogation of common law and should be strictly construed, and, indeed, to entitle the appellant to the remedy which he asks thereunder all of the statutory requirements must be strictly complied with.
Connell v. Lewis, Walk. (1 Miss.), 251; Skinner v. Wilson, 61 Miss. 90; 57 C.J., Sec. 659.
Penal statutes are strictly construed, and one who seeks a penalty must bring himself within the literal terms of the statute.
Watson v. Boyette, supra; Union Motor Car Co. v. Farmer, supra; Crawford v. Bank of Seminary, supra; Skinner v. Wilson, supra; Simms v. Quinn, 58 Miss. 221; McInnis v. Parker, 183 Miss. 648, 184 So. 418.
No presumption can be indulged in and no supposition invoked to make out this case, but the liability of the sheriff must be established by cogent, sufficient and certain evidence introduced in a competent manner.
W.T. Rawleigh Co., Inc., v. Hester et al., 190 Miss. 329, 200 So. 250.
The appellant sued on its demand against David H. Kirkland as principal debtor and J.R. Wing and D.D. Emerick as sureties, and took the judgment here involved only against the said sureties for the amount sued for in excess of the sum of $800 in the circuit court of Amite County. Thereafter, on the 24th day of April 1942, it caused an execution to be issued by the circuit clerk on the said judgment against the two sureties, returnable to the June 1942 term of the said court. The execution was not returned by the appellee, A.J. Causey, sheriff of the county, on the return day thereof, but a return was made thereon on December 26, 1942, showing that the judgment debtors had no property out of which the judgment could be collected.
The present suit was commenced by the appellant by motion filed by it in said court under Section 3317, Code of 1930, seeking to recover the amount of said judgment, with five per centum thereon as damages, and all costs against the sheriff, A.J. Causey, and the United States Fidelity Guaranty Company, as surety on his official bond, for failure to return the execution into court on the return day thereof.
The circuit clerk was introduced as a witness on behalf of the appellant, and it was shown by him that the execution was issued on the date aforesaid and made returnable to the June term of court, but he was asked no questions as to when he delivered the writ of execution to the sheriff, and no other proof was introduced on that issue. Counsel for the appellant had the clerk to identify the signature of the sheriff on a letter written to the attorney on December 17, 1942, but this letter contained no recital as to the date when the execution was received by the writer of said letter. The sheriff was not called to the witness stand as an adverse party to ascertain when the writ was received by him, as should have been shown by his execution docket required by Section 3327, Code of 1930, to be kept as a record of his office, nor was the sheriff called on or required to offer any evidence in that behalf, for the reason that the trial judge at the conclusion of the testimony offered by the appellant sustained a motion to dismiss the proceeding on the grounds assigned therein, and one of which was that the judgment creditor had failed to prove that the writ was actually received by the sheriff prior to its return day. No request was made to be allowed to reopen the case to make proof of such fact, and the appellant on this appeal relies upon the presumption of law to the effect that the circuit clerk is presumed to have delivered the writ to the sheriff with reasonable promptness following the issuance thereof.
This court held, however, in the case of W.T. Rawleigh Co., Inc., v. Hester et al., 190 Miss. 329, 200 So. 250, that the presumption that Hester had delivered the unexecuted writ of execution involved therein to his successor in office, Lotterhos, as required by Section 3323, Code of 1930, was neutralized by the presumption of law to the effect that if the latter had received the writ before the return day thereof, he would have returned it within the time required by Section 3317 invoked in the present suit. Hence the principle there announced is applicable in the case at bar in favor of the sheriff against whom this highly penal statute is invoked that if he had actually received the writ before the return day thereof, he would have returned it into court as required by the statute, since he would otherwise have been subjected to the penalty of having to pay the full amount of the judgment, damages and costs.
Moreover, it was held in the cases of Skinner v. Wilson, 61 Miss. 90; Watson v. Boyett, 151 Miss. 726, 118 So. 629; and W.T. Rawleigh Co., Inc., v. Hester et al., supra; 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"; and it was stated in the Rawleigh case, supra [ 190 Miss. 329, 200 So. 253], that the statute invoked "is highly penal and that one seeking to recover thereunder must bring his case clearly within its terms."
We are unable to say that the trial judge was in error in holding that the appellant had failed to meet the burden of proof of showing that the writ was actually received by the sheriff prior to its return day, or that it was received prior to a special term of the court which was convened in August 1942, since the counsel for the appellant, when testifying as a witness in the case, referred to an occasion when he called at the sheriff's office on December 26, 1942, and stated that the sheriff had then had the writ of execution for a period of three or four months, thereby leaving it in doubt as to whether he received it before the first day of the term of court either in June or August of that year.
The judgment of the court below dismissing the proceeding against the appellee must therefore be affirmed.