Opinion
(September Term, 1892.)
Amercement — Sheriff — Return — Amendment — Execution — Excuse.
A sheriff received an execution 19 August, 1892, entered his return on it 5 November, and forwarded it to the court from which it issued, but the clerk of that court did not take it out of the postoffice until the next day. The court met on 2 November and adjourned on the 5th, but the sheriff was ignorant of the day of adjournment. In amercement proceedings, after answer filed and the hearing of the cause was entered upon, the plaintiff moved to amend his affidavit in order to charge failure to execute and make due return: Held, (1) that the denial of this motion and the discharging of the rule against the sheriff was error; (2) no sufficient excuse was offered for failure to return the execution.
AMERCEMENT proceeding against defendant, the sheriff of WAKE, for failure to return an execution in favor of plaintiff, tried before Whitaker, J., at March Term, 1892, of ORANGE.
C. D. Turner for plaintiff. (292)
W. W. Fuller for defendant.
The term of the court to which the sheriff was bound to return the execution adjourned sine die on the afternoon of Thursday, 5 November, 1891. The sheriff mailed the execution with his return indorsed thereon at Raleigh on the morning of the said 5 November. It was taken out of the postoffice at Hillsboro by the clerk of Orange Superior Court on the day after the adjournment of the term.
Executions shall be returnable to the term of the court next after that from which they bear teste. The Code, sec. 449. The sheriff is allowed all the days of the term to return an execution, unless he be ruled, upon motion and cause shown, to return it on some intermediate day. Person v. Newsom, 87 N.C. 142. While the term may last for the full time given it by law, it may be adjourned at an earlier day. Branch v. Walker, 92 N.C. 87; Foley v. Black, ibid., 476. (293) It seems that this execution was received by defendant on 19 August, that the plaintiff was restrained by order of the judge from proceeding under it, and that at any time after such restraining order was served upon plaintiff the execution might have been returned, but that it was delayed until too late to reach the court before its adjournment. Section 2079 of The Code imposes the penalty for neglect to make due return, unless such sheriff can show sufficient cause to the court at the next succeeding term after the order.
It is true that, as appears by the answer of defendant, an alias execution afterwards came into his hands and he collected the money thereon and the plaintiff has received the same. We are precluded from giving relief on account of the hardship of the case. The letter and spirit of the law are plain, and the statute is older than the State. Its purpose is to secure promptness and efficiency on the part of its officers. A failure to execute it from motives of sympathy would lead to looseness in administration and impair the strength and dignity of the law. No sufficient excuse was offered for the failure to return the execution and it was error to discharge the rule.
REVERSED.
Cited: Boyer v. Teague, ante, 247; Swain v. Phelps, 125 N.C. 44.