Opinion
No. 27126.
October 1, 1928.
1. SHERIFFS AND CONSTABLES. Judgment creditor, in action against sheriff for failure to return execution, must prove failure to return execution by return day ( Hemingway's Code 1927, section 3293).
Judgment creditor, in order to recover against sheriff under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), on account of failure of sheriff to return execution on or before return day thereof, must establish by proof a failure to return the execution by return day.
2. SHERIFFS AND CONSTABLES. Clerk's failure to properly indorse date of filing sheriff's return of execution will not render sheriff liable for statutory penalty ( Hemingway's Code 1927, section 3293).
In case sheriff makes return of execution on or before the return day thereof, failure of clerk to discharge duty of indorsing on it the date of the filing, or indorsement of an erroneous date, will not prejudice the rights of the sheriff or render him liable for penalty fixed by Hemingway's Code 1927, section 3293 (Code 1906, section 4670), for failure to return execution on or before return day thereof.
3. SHERIFFS AND CONSTABLES. Parol evidence is admissible to show that indorsement or file mark of clerk on sheriff's return of execution was erroneous ( Hemingway's Code 1927, section 3293).
In proceeding to subject sheriff to penalty under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), for failure to properly return execution, parol evidence is admissible to show that indorsement or file mark of clerk was erroneous, and that execution was returned on some other date; the memorandum indorsed by clerk on execution being only prima-facie evidence of when it was lodged in his custody.
4. SHERIFFS AND CONSTABLES. Evidence as to whether execution was returned by sheriff on or before return day held to raise issue of fact for chancellor ( Hemingway's Code 1927, section 3293).
In proceeding to subject sheriff to penalty under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), for failure to return execution on or before return day thereof, evidence relative to whether execution was returned on or before such return day held sufficient to raise an issue of fact for chancellor.
APPEAL from chancery court of Washington county; HON. J.L. WILLIAMS, Chancellor.
E. Kellner, Jr., for appellant.
In order to sustain the motion it was incumbent upon appellant to show, first, the issuance to the sheriff of a valid execution, and second, that the sheriff failed to return the execution to the chancery clerk's office on or before its return day.
The appellees assailed the validity of the execution, first, on the ground that the defendants in the decree upon which the execution issued had tendered the property to the commissioner and that he had failed and refused to accept it, and second, on the ground that the deputy chancery clerk signed the name of the chancery clerk to the execution and failed to affix his name thereto as deputy chancery clerk.
In Wimberly v. Boland, 72 Miss. 241, 16 So. 906, this identical question was presened to this court. See Gamble v. Trahen, 3 How. 32. The only other question presented on this appeal is whether or not the execution was returned to the chancery clerk's office on or before the return day thereof, which was the first Monday of October, 1928. Murrah v. State, 51 Miss. 652; Jones v. Williams, 62 Miss. 183; Childress v. Carley, 92 Miss. 571, 46 So. 164; Steverson v. McLeod Lumber Co., 120 Miss. 65, 81 So. 788. If the file mark of the chancery clerk upon the execution was a part of the record, and I respectfully insist that it was, this evidence was conclusive that the execution was filed in the chancery clerk's office long after the return day thereof. 22 C.J., sec. 910, p. 799; Sweet v. Gibson, 83 N.W. 407; Beall v. Shattuck, 53 Miss. 358; Izod v. Addison, 5 How. 432.
Even though the file mark of the chancery clerk is not a part of the record and, therefore, conclusive evidence that the execution was filed long after the return day thereof, it is the only evidence in the record as to when the execution was filed in the office of the chancery clerk, and the execution being valid and properly issued the lower court erred in denying appellant's motion.
Percy Percy, for appellee.
The suit is based upon the claim that the sheriff appellee failed to return an execution, which had come into his hands from the chancery court of Washington county in the suit of J.M. Jeffreys against R.D. Baskin, to the said chancery court on or before the return day thereof, to-wit, first Monday of October, 1926, the execution having been issued on May 11, 1926. In order to recover, the appellant must show: 1. that the execution was properly issued; 2. that it was a valid writ; 3. that it was not returned by the return day.
Our first contention is that this execution should not have been issued, the suit was upon a forthcoming bond. No execution could properly issue unless and until there had been a failure to deliver the property. There is no word of testimony offered to show a failure of delivery.
No valid execution was issued. The execution was signed L.M. Nicholson, clerk of said chancery court. Said signature was made by M.C. Strong, not by L.M. Nicholson. M.C. Strong was the deputy chancery clerk. He had no authority to sign Nicholson's name unless he possessed such authority by reason of his appointment as deputy chancery clerk. Process is required to be signed by the clerk. When not signed by him in personam, but by a deputy it must show the name of the principal and that it was affixed by the deputy. Felder v. Meredith, Walk. 447; Gibbens v. Picket (Fla.), 12 So. 17.
The foundation of appellant's case is that there was a failure to return the execution by the return day. Of course the burden of proving this rests upon appellant. He seeks to meet that burden solely by the endorsement made upon the execution by the deputy clerk filed June 10, 1927. This endorsement was made in the name of the the clerk but was affixed by the deputy clerk. The officer stated he had no personal recollection in regard to the matter.
It was practically impossible for this execution to have been in the sheriff's office from the date when it was returned, according to his books, until June 10, 1927. It was either in the sheriff's office or in the chancery clerk's office. The deputy in charge of this paper swears that it was not in his office but was returned.
The chancellor below heard the testimony of both witnesses and found as a matter of fact that the appellant failed to prove that the execution had not been returned properly.
Ernest Kellner, Jr., reply brief for appellant.
Appellees seem to be of the opinion that the oral testimony of M.C. Strong, deputy chancery clerk, was competent; however, they cite no authorities to overcome the very broad provisions of section 1974, Code 1906; section 1634, Hemingway's 1917 Code, that this testimony, in the absence of a sworn pleading, was incompetent and should have been excluded by the trial court. The cases of Felder v. Meredith, Walk. 447, and Gibbens v. Pickett, 31 Fla. 147, 12 So. 17, quoted from by appellees are clearly not in point. In these cases the process was signed by the deputy in his own name, without affixing the name of the principal officer, and in each case the court correctly held that the process was void. In the Felder case the process was signed "W. Baker, D. Clerk" and in the Gibbens case the process was signed "E.J. Murphy, Deputy Sheriff."
Percy Percy, additional brief for appellee by request of court.
The court requests an additional brief upon a single point, namely; is the date of filing placed on the execucution by the chancery clerk a part of the record which imports verity and conclusive evidence of the date when the execution was returned, or may this date be contradicted by parol? We shall address ourselves solely to this query.
We submit that the question of the court is completely answered by the decision in Bank v. Hoyt Bros. Co., 74 Miss. 221. The facts in that case were that the appellant's counsel took the bill and an exhibit to it to the chancery clerk and that the clerk marked it filed and made an entry showing it had been filed in the general docket of the court. Identically the facts here. The question which the court considered was not whether the conduct of the counsel estopped him from claiming that the bill was filed but was whether in fact the bill was filed. Whether the notation "filed" made upon the bill and the entry into the general docket of the filing was conclusive evidence and the court answering the very query which is now propounded said that such endorsement upon the bill and such entry into the general docket by the clerk were evidence but not conclusive evidence. The court held that what was done with the bill did not constitute filing and that what was done with the bill could be proven by parol evidence to explain and contradict the endorsement made by the clerk. See 2 Wigmore on Evidence, sec. 1348; 17 Cyc. 580; 31 Cyc. 591; Harall v. Martin, 6 Ala. 587; Porter v. Kimball, 3 Lans. 330; Manion v. Brady (Iowa), 126 N.W. 801; 4 Wigmore on Evidence, sec. 2450C, Note; Franke et al. v. Alexander et al., 88 Mo. App. 35, Michals v. Stork, 52 Mich. 260; Nall v. Granger, 8 Mich. 450, 77 Am. Dec. 462; Jones v. Commercial Bank, 5 How. 43.
Ernest Kellner, Jr., reply brief for appellant to additional brief for appellee.
In response to the question of the court in this cause, the appellees rely principally upon the case of Bank v. Hoyt Bros. Co., 74 Miss. 221, 21 So. 12, and argue that this case is decisive of the question. It seems to me that this case is clearly not in point and decides a different question from that propounded by the court.
The decision in that case was that unless a pleading is filed it does not become a part of the record, and, although marked filed, if it was not in fact filed, the file mark of the officer is not conclusive evidence of the filing. I say this is a different question from appellant's contention, which is embodied in the question propounded by the court, that when a pleading, summons, execution or other paper, is in fact filed, it becomes a part of a judicial record and imports verity. No question is raised whether the execution in the case at bar was in fact filed, but the question is, when was it filed, and appellant's contention is that the execution, being in fact filed, became a part of a judicial record and imports verity of every fact disclosed by the execution, including the date of its filing.
The distinction between the foregoing case and appellant's contention was recently recognized by this court in the case of Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; See 10 R.C.L. 1120; 22 C.J. 1077; Childress v. Carley, 92 Miss. 571, 46 So. 164; Jones v. Williams, 62 Miss. 183.
Argued orally by Ernest Kellner, Jr., for appellant.
On October 13, 1925, the chancery court of Washington county granted a decree in favor of the appellant against R.D. Baskin, in which a lien was impressed upon certain personal property for the satisfaction of the decree, and the said Baskin was ordered to forthwith deliver the property to a commissioner to be sold; and it was provided that in the event of the failure of the said Baskin and his sureties to forthwith deliver said property to the commissioner, execution might be issued against them for the value of the property. The said Baskin having failed to deliver the property, on May 11, 1926, an execution was issued on said decree and delivered to the appellee George B. Alexander, sheriff of Washington county, returnable on the first Monday of October, 1926, the first day of the next regular term of the chancery court of Washington county. The docket entry in the office of the chancery clerk of that county shows that the execution was returned and filed on June 10, 1927, while the same date of filing was indorsed on the execution itself by the chancery clerk.
On September 21, 1927, the appellant filed a motion in chancery court of Washington county against the sheriff and the sureties on his official bond to recover a judgment for the amount of the execution on account of the failure of the sheriff to return the execution on or before the return day thereof, under the provisions of section 4670, Code 1906 (section 3293, Hemingway's 1927 Code). The appellee answered the motion, and upon the hearing thereof a recovery against the sheriff was denied, and from the order overruling the motion this appeal was prosecuted.
To maintain the motion for a judgment against the sheriff for failure to return the execution on or before the return day thereof, and to prevail on this appeal, it was necessary for the appellant to establish, by the proof, a failure to return the execution by the return day. To meet the burden of proof in this regard, appellant relied solely on the indorsement on the execution of the words: "Filed June 10, 1927. L.M. Nicholson, Chancery Clerk." This indorsement, to which the chancery clerk's name was signed, was entered on the execution day by a deputy chancery clerk, who testified that he had no personal recollection in regard to the time when the execution was actually lodged in the office of the chancery clerk. The appellant contends that the date of filing indorsed on the execution by the chancery clerk is a part of the record which imports absolute verity, and is conclusive evidence of the date when the execution was actually returned to the office of the chancery clerk, while the appellees contend that this file mark is only prima-facie evidence of the date on which it was returned, and that parol evidence is permissible to contradict it and show that it was filed on some other date.
To constitute a return of the execution, it was merely necessary for the sheriff to place it in the official custody of the clerk of the court to which it was returnable. This was all that was required of him; and if he made such return on or before the return day of the execution, the failure of the clerk to discharge the duty of indorsing upon it the date of the filing, or the indorsement of an erroneous date, will not prejudice the rights of the sheriff or render him liable for the severe statutory penalty fixed for the failure to return an execution on or before the return day thereof. In the case of Bank v. Hoyt Bros. Co., 74 Miss. 221, 21 So. 12, 36 L.R.A. 796, 60 Am. St. Rep. 504, this court, speaking through Judge WHITFIELD, said:
"It is clear that marking the paper `filed' is not filing it. A paper may be marked filed, and yet not be in fact filed; and a paper may be in fact filed, though not marked filed. And the entry on the general docket does not constitute filing. All these indorsements of the clerk are evidence, but not conclusive evidence, of a filing."
In 31 Cyc., p. 591, this doctrine is announced in the following language:
"Filing a pleading under the modern practice consists simply in placing it in the hands of the proper officer, usually the clerk of the court, to be preserved and kept by him, in his official custody, as a public record. It is deemed filed when delivered to and received by the proper officer to be kept on file. It is the duty of the officer receiving it to make the proper indorsement and entry, but this is merely evidence of the filing and is not essential to the validity thereof. Nor will the memorandum or indorsement alone constitute conclusive evidence of the filing."
To comply with the mandate to return the execution on or before the return day thereof, the sheriff was merely required to place it in the official custody of the chancery clerk, on or before that date, and the memorandum indorsed by the clerk on the execution is only prima-facie evidence of when it was lodged in his custody; and in the proceeding to subject the sheriff to the statutory penalty for a failure to properly return the execution, it was permissible to show by parol evidence that the indorsement or file mark of the clerk was erroneous, and that the execution was returned on some other date.
The appellant next contends that if it is held that the filing indorsed on the execution by the chancery clerk is only prima-facie evidence of the date the execution was returned, still there was no evidence to overcome this prima-facie showing, or to support a finding by the court that the execution was returned on or before the return day thereof. The deputy sheriff who handled this execution, and whose special duty it was to execute and return all executions delivered to the sheriff for service, testified positively that this execution was returned to the chancery clerk's office on June 12, 1926. On cross-examination, it was developed that this deputy had no personal recollection of actually returning this particular execution to the clerk's office, but was testifying from records in the sheriff's office, and his invariable custom to return executions at the time the sheriff's return on the execution was copied on the "Sheriff's Execution Docket," and from the fact that repeated examinations of the execution files and papers in the sheriff's office during the twelve months intervening between the date the return was entered on the sheriff's docket and the date of the indorsement by the chancery clerk failed to disclose that this execution was in the sheriff's office at any time during that period. Another deputy sheriff, who acted in a supervisory capacity, testified that during that period of time he made repeated examinations of the docket, papers, and documents in the sheriff's office with particular reference to executions and the return thereof, and that these examinations failed to disclose that this execution was in the sheriff's office at any time after June 12, 1926.
Considering all the testimony of these witnesses, we think it was sufficient to raise an issue of fact to be decided by the chancellor, and, therefore, the judgment of the court below will be affirmed.
Affirmed.