Opinion
No. 29592.
November 16, 1931.
EXECUTION, Sheriffs.
Execution returnable within fifteen days was void, and therefore no liability attached on constable's bond for failure to sell property levied on.
APPEAL from circuit court of Copiah county; HON.E.J. SIMMONS, Judge.
R.O. Arrington, of Crystal Springs, for appellants.
All executions must be made returnable to the next term after they are issued provided fifteen days intervened between date of their issuance and the first day of the term and such execution is irregular and a nullity and void because it was issued directly in opposition to the statute, which imperatively requires all executions to be made returnable to the first day of the term next succeeding the date of their issuance provided at least fifteen days intervened between the time and the date of their return.
Skinner v. Wilson, 61 Miss. 90.
Statutes of this character are regarded as of the character so highly penal that very slight circumstances are held to exempt officers from their operations.
Skinner v. Wilson, 61 Miss. 90; Sec. 3012, Code 1930; Lehr v. Rogers, 3 S. M. 468; Harris v. West, 25 Miss. 156.
W.B. Mixon, of McComb, for appellee.
It has sometimes been held that an error in the return day or in other words, the designation in the writ of a return day, at a different time from that designated by law, was fatal. But this view is entirely without the support of reason, and is now opposed by a decisive majority of the reported adjudications upon this subject. In fact, there is no mere matter of form from which a departure could be of less detriment to the parties. The provision for a return day is beneficial mainly, if not solely, to the plaintiff, because it fixes a time when he may expect to obtain the fruits of his judgment, by compelling the sheriff to have the writ satisfied, if satisfaction can be had. The defendant has no interest in the return day, for the writ, as soon as sued out, may and ought to be levied, whether it be returnable in ten days or in six months. And whether the time for the return day be material to defendant or immaterial he would not be precluded from waiving his rights; and if he does waive them, either in express terms or by silent acquiescence, the waiver ought to be irrevocable.
1 Freeman on Executions (2 Ed.), page 119, Sec. 44.
A mistake in stating the time for the return, did not affect the sheriff, or make it less his duty to make the money and return the process according to law. An execution returnable in a less time than allowed by law is valid, and may be executed after the time named in the writ. A writ returnable at a more distant date than sanctioned by statute may be enforced within the time in which it might properly have been made returnable. The omission of any part or of the whole of the clause designating a time or place for the return of the writ if an amendable defect, which though not amended, does not vitiate the writ on a collateral attack.
1 Freeman on Execution (2 Ed.), page 119, Sec. 44; Brown v. Thomas, 26 Miss. 335.
Where a constable levied on the property, took a straw bond and turned the property back to the defendants, which he was not authorized under the law to do, he cannot save himself by trying to treat the execution as void or voidable.
Brown v. Thomas, 26 Miss. 335.
In the year 1926 the appellee, Crystal Oil Company, recovered a judgment in a justice of the peace court of Copiah county against Robert Parsons and John Millsaps. Upon this judgment an execution, dated October 27, 1926, and returnable November 8, 1926, was issued, and placed in the hands of the constable, J.D. Puckett, appellant herein, and it was levied on a Ford car, which was in possession of the judgment debtors; the return of the officer being as follows:
"I have this day executed the within writ personally, by taking possession of one Ford coupe car, motor No. 9510972, of the value One Hundred Fifty Dollars, and taking bond for same. This the 29th day of Oct., A.D., 1926."
"J.D. PUCKETT, Constable."
In April, 1930, the appellee filed suit against the constable, and the sureties on his official bond, alleging a breach of duty on the part of the constable, in failing to advertise and sell the car and deliver the proceeds into court, under and by virtue of the said execution, and seeking to recover the value of the car as damages for such breach of duty. There was a judgment against the constable and the sureties on his official bond in both the justice and circuit courts, and from the judgment in the circuit court this appeal was prosecuted.
Upon the face of the execution it appears that less than fifteen days intervened between the date and the return day thereof. Section 3012, Code of 1930, provides that: "Writs of execution shall bear date and be issued in the same manner as original process, and shall be made returnable on the first day of the next term of the court in which the judgment or decree was rendered, if there be fifteen days between the issuance and return thereof; and, if not, on the first day of the term next thereafter. . . ." And in the case of Harris v. West, 25 Miss. 156, it was held that an execution is void where less than fifteen days intervenes between the date and return thereof. Also, in the case of Lehr v. Doe ex dem. Rogers, 3 Smedes M. 468, it was held that all executions must be made returnable to the next term after they are issued, provided fifteen days intervene after the date of their issuance and the first day of the term, and that an execution issued in opposition to this provision of the statute is a nullity and void. Under the rule announced in these cases, the execution involved in the case at bar was void on its face, and therefore no liability attaches as against the officer or his bondsmen, for a failure to advertise and sell property levied on thereunder. The judgment of the court below will therefore be reversed, and judgment will be entered here for the appellants.
Reversed and judgment here for appellants.