Opinion
No. 33396.
November 21, 1938.
SHERIFFS AND CONSTABLES.
Where sheriff failed to mark on execution the day of its receipt, as required by statute, and defendants had no property out of which judgment could be satisfied, and the sheriff so returned on the execution, sheriff was not liable for the statutory penalty for failure to mark on the execution the day of its receipt, since the execution creditors were not damaged (Code 1930, sec. 2981).
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
McIntosh McIntosh, of Collins, for appellants.
We hasten to admit that the question of actual damages is foreclosed against the appellants because the lower court found, after agreement of all parties litigant that the cause should be tried without a jury, that the judgment debtor had no property for the sheriff to levy upon within a reasonable time after he received the execution. However, we do contend that appellants are entitled to recover the statutory penalty of one hundred dollars because the sheriff failed to mark the time he received the execution thereon as is required by Section 2981 of the Mississippi 1930 Code.
We have been unable to find a decision of the Supreme Court of this state construing that part of the statute dealing with the failure to mark time of receiving process by the sheriff, however, the statute is so plain and unambiguous that it is deemed unnecessary to urge this point further than a simple reference to the statute itself. The first phrase of the statute stipulates that "the sheriff shall mark on all process the day of the receipt thereof by him . . .", and in announcing the penalty for failure to so do the statute continues, "and for failing to note the time of the receipt of the process, or," thereby precluding any question as to the intent or the construction thereof.
The statute before us is a good and wholesome law which should be enforced as it is written, and when a sheriff refuses, without any cause or excuse to obey its solemn mandate, then he should be compelled to pay the penalty therein provided.
Edwards Edwards, of Mendenhall, for appellees.
As appellants have abandoned all claim to damage, actual, and insist only that they are entitled to the statutory penalty of one hundred dollars we will answer this contention only. And in so doing we call the attention of the court to the language of Sec. 2981, Mississippi Code of 1930. A careful reading of this section shows that the party claiming this penalty must be an aggrieved party, and not merely a party to the execution or one having an interest in the process to be executed. And this being a highly penal statute it must be strictly construed.
Section 3317 of Code 1930 is the direction given the sheriff in the performance of the duty of serving an execution and we insist that this section was at least substantially complied with and that the appellant has not been aggrieved in the premises. This penalty is not to be inflicted arbitrarily upon an officer who has done nothing to the prejudice of the plaintiff in execution.
The fact that the defendants in execution had at the date of the issuance of the execution and at the time the returns were made no property subject thereto is all sufficient under all the other facts and circumstances of this case to relieve the appellees from the highly penal statute under which appellants are proceeding.
Watson v. Boyett, 151 Miss. 726, 118 So. 629.
Appellants, McInnis and Pace, filed a motion in the circuit court of Simpson County against appellees, Bishop, the sheriff of said county, and the sureties on his official bond, to recover the penalty of $100 provided by Section 2981, of the Code of 1930. The court held appellees not liable for the penalty and entered judgment accordingly, from which judgment appellants prosecute this appeal.
Appellants recovered a judgment in the circuit court of Simpson county against E.N. Parker and his wife, Amanda Parker, on which execution was issued and put in the hands of the sheriff. The sheriff failed to mark on the execution the day of its receipt. So far as the evidence goes, this is the only one he had in his hands. The execution defendants had no property out of which the judgment could be made. The sheriff so returned on the execution.
Section 2981 provides, among other things, that the sheriff shall mark on all process the day of the receipt thereof by him, and for failure so to do, he shall forfeit to the party "aggrieved" the sum of $100. The question is whether appellants were aggrieved by the failure of the sheriff to note on the execution the date of its receipt. We are of the opinion they were not — they suffered no loss or injury whatever.
The question is analogous to that involved in Watson v. Boyett, 151 Miss. 726, 118 So. 629. The penalty claimed against the sheriff in that case was under Section 3317, Code of 1930, Section 4670, Code of 1906. That section provides, among other things, that if the sheriff shall fail to return an execution on the return-day, the plaintiff therein shall be entitled to recover judgment against him and his sureties for the amount of the execution, and all costs, with lawful interest thereon until the same shall be paid, and, in addition, five per cent of the judgment as damages.
The husband of the plaintiff in execution, acting as her agent, had a conversation with the sheriff which was calculated to lead the latter to believe nothing could be made on the execution. The court held that the conversation was sufficient to relieve the sheriff from the statutory penalty — that the statute was highly penal and the sheriff would be exempt from its operation by "slight circumstances."
Affirmed.