Bickham v. Kosminsky , 74 Ark. 413 ( 1905 )

Hmi,, J.,

(after stating the facts.) Section 3286, Kirby’s Digest, imposes a liability on a sheriff for failing to return an execution on or before the return day therein specified. The officer is “liable and bound to pay the whole amount of money in such execution specified, as therein indorsed and directed to be levied.” The appellant seeks to escape this liability by setting up the conduct of the attorney of record of the execution plaintiff which he claims justified and authorized him in not returning the execution within the time specified.

In Jett v. Shinn, 47 Ark. 373, the court said: “The sheriff is not excused from returning an execution by any conduct of the plaintiff which falls short of showing that the nonreturn resulted from the act or instructions of the plaintiff, or was ratified or waived by him.”

In a similar case under a similar statute in Mississippi the court, through Chief Justice Chalmers, said: “While the officer was not told in so many words that he might hold up the writ, he did receive instructions from which he was fairly led to infer a willingness upon the part of the plaintiff’s attorneys for him to do so. Those who propose to invoke against officers the severe penalties of the statute upon which this motion is based must be careful to do nothing which directly or indirectly contributes to the omission of duty complained of.” Simms v. Quinn, 58 Miss. 221. This statement may reach further than was contemplated in Jett v. Shinn, but it well illustrates the application of the rule announced in Jett v. Shinn, that the act or instructions of the party in interest in preventing the return is a defense to the officer.

The Kentucky court said: “A sheriff is not responsible for failing to return an execution to the proper office if he acts in obedience to the orders of the plaintiff; but it is incumbent on him to make out. his defense by evidence.” Commonwealth v. Hurt, 4 Bush, 64. The rule'seems thoroughly established that the officer can defend against a failure of a statutory duty of this class, when sued, by the plaintiff in execution, by showing that his omission to perform the duty was due to the conduct or instructions of the plaintiff or his attorney of record. Stryker v. Merseles, 24 N. J. L. 542; People v. Offerman, 84 Ill. App. 132; State v. Boyd, 63 Ind. 428; Billingsly v. Rankin, 2 Swan (Tenn.), 82; Robinson v. Harrison, 7 Humph. (Tenn.) 189; Granberry v. Crosby, 7 Heisk. (Tenn.) 579; 25 Am. & Eng. Enc. Law (2d Ed.), 692; Murfee on Sheriffs, § § 969, 969a.

The plaintiff in execution has a right to control the exe- ' cution by himself or attorney, and, having such right, the officer must follow his instructions. Burton v. Cave, 41 N. W. Rep. 1097; Morgan v. People, 50 Ill. 58; Smith v. Erwin, 77 N. Y. 466; 25 Am. & Eng. Enc. Law (2d Ed.), 466.

This authority of the plaintiff must not be exercised to cause the sheriff to omit a statutory duty; but if it does cause him to do it, the plaintiff cannot take advantage of it. The court decided in Craig v. Smith, ante, p. 367, under different statute, that an officer would be protected against a penalty where an agreement of the complaining party caused the omission of the statutory duty. This is but another invocation of "the same principle in different form.

The court is of opinion that the answer presented a good defense, and the court erred in sustaining a demurrer to it. Reversed, with directions to overrule the demurrer and proceed in accordance with this opinion.