Opinion
No. 35604.
May 22, 1944.
1. EXECUTION.
The fact of the seal of the clerk, and not its location, is important in effecting authentication of a writ of execution (Code 1942, sec. 1844).
2. EXECUTION. Sheriffs and constables.
Where a writ of execution was a printed form upon a single sheet, the right half containing the writ proper and the left half setting forth an itemized cost bill, that the clerk's seal was affixed to the lower left-hand corner of the part containing the cost bill, instead of to the part containing the writ proper, did not render the writ invalid, so as to excuse sheriff's failure to return writ on return day (Code 1942, secs. 1844, 4242).
APPEAL from the circuit court of Monroe county, HON. THOS. H. JOHNSTON, Judge.
H.L. Austin and Geo. S. Hamilton, both of Jackson, for appellant.
The writ of execution issued and signed by the clerk was with the seal of his office affixed, within the meaning of Section 2964 of the Code of 1930, Section 1844 of the Code of 1942.
Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93; Evans v. Smith et al., 43 Minn. 59, 44 N.W. 880; Code of 1930, Sec. 690, Code of 1942, Sec. 1601; 7 A.L.R. 1670, Note; 29 A.L.R. 963, Note; 1 C.J. 838, Sec. 178; 46 C.J. 523, "Place of Seal"; 1 C.J.S. 850, Sec. 89; 1 Am. Jur. 351, Sec. 89; 39 Am. Jur. 229, Sec. 44.
Paine Paine, of Aberdeen, for appellee.
The execution was void since it did not have affixed to it the seal of the circuit court, out of which the execution issued, and since Section 4242, Code of 1942, is highly penal, very slight circumstances are held to exempt the officer from its operation.
Pharis v. Conner, 3 Smedes M. (11 Miss.) 87; Burton v. Cramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Mullins v. Lyle, 183 Miss. 297, 183 So. 696; Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773; Code of 1942, Secs. 1600, 1601, 1844, 1900.
While the defense we are making for the appellees may be highly technical, yet the courts seize upon the slightest circumstances to exempt a sheriff from this highly penal statute.
W.T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250; Watson v. Boyett, 151 Miss. 726, 118 So. 629; Skinner v. Wilson, 61 Miss. 90.
An execution is a process of the circuit court and in effect is a fiat directed to the sheriff to do certain things — under one section of the Code, to collect court costs, and under another section to collect judgment, interest and costs. The execution in either event must have the seal affixed to it. But a cost bill is an entirely different paper and is not process of the court and is not required to be under seal, and if the clerk affixes his seal to the cost bill, this does not add any validity or anything else to the cost bill, and therefore the affixing of the seal to the cost bill is a nullity.
Argued orally by Thos. F. Paine, for appellee.
Section 4242, Code 1942, fixes a penalty upon a sheriff who "shall fail to return any execution to him directed, on the return-day thereof," in an amount equal to the amount of the execution with costs and interest. Appellant as a judgment creditor filed its motion for enforcement against the appellee as sheriff of Monroe County pursuant to the statute. Motion was denied and the judgment creditor appeals.
The return day of the writ was March 1, 1943. A purported return nulla bona was made April 16, 1943. The defense was based upon the alleged invalidity of the writ as issued by the clerk who, instead of affixing his seal thereon upon the body of the writ impressed it upon that portion of the document containing the cost bill.
It was requisite that the writ be sealed. Section 1844, Code 1942. The question, therefore, is whether the seal was affixed to the writ in the sense contemplated by the statute. The writ was a printed form upon a single sheet. The right half of the form contains the writ proper, and the left half sets forth an itemized cost bill. The seal was affixed to the lower left-hand corner of the part containing the cost bill. It was not necessary to seal the cost bill. Impressment of the seal thereon was meaningless unless it was intended thereby to authenticate the writ. Had the seal been affixed upon any part of the face of the writ proper, there is no question that it would suffice. The fact of the seal, and not its location, is important in effecting authentication. Had the remainder of the form been left blank, a seal placed upon the unprinted margin would be beyond criticism. Is it material, then, that it was placed upon that part of the document which had been utilized to detail accrued costs? We think not.
Appellees' position, to retain consistency, would operate to have subjected the sheriff to damages for a seizure of any goods thereunder, and it is beyond doubt that in such event the brief of appellant could be successfully used by the sheriff to defend a suit against him by the judgment debtor. We do not deprecate the tendency of the courts to scrutinize such proceedings carefully, even technically, and to seize upon slight circumstances to exempt officers from its operation. Watson v. Boyett, 151 Miss. 726, 118 So. 629; W.T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250; W.T. Rawleigh Co. v. Foxworth, 194 Miss. 205, 11 So.2d 919. Yet we are not here dealing with circumstances involving conduct, but with a record. We are of the opinion that to extend this principle to encompass the case here would be to abandon the judicial field in usurpation of the pardoning power.
Reversed, and judgment for appellant.
Roberds, J., took no part.