Gillis v. Smith ( 1881 )

Jackson, Chief Justice.

The claimant moved to dismiss the levy on the ground that the defendant therein was sheriff of the county at its date, and that the execution was directed to all and singular the sheriffs and coroners of this state, instead of to the coroner of the county of Stewart, and all and singular the sheriffs of said staté except the. sheriff of the county of Stewart, and that the successor to the sheriff at the date of the execution made the levy, he being the sheriff of Stewart county. The court denied the motion, and this is the error assigned.

Section 3633 of the Code, enacts that the execution in such a case shall be directed as contended for by the plaintiff in error; but section 4, sub-section 6, enacts that a substantial compliance with any requisition of the Code on the part of public officers, shall be sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment. In this case the enactment does not so provide, and the direction is substantially a compliance with the enactment. The purpose and spirit of the act is that the sheriff shall not handle and execute a process against himself; but it does not mean that a succeeding sheriff of the county should not do so. True, it excepts the sheriff of that county from the officers to whom it is directed, but the intent is as to the man then exercising the duties of the office, who is defendant in fi. fa. If he had levied it, of course the levy could not stand, but that his successor did, with whom he had no connection at all, could hurt nobody. The Execution is directed to all the coroners, and that embraces the coroner of Stewart county. It is faulty only in not excepting the sheriff of Stewart countybut that is required because he was then a party. The reason ceases when a new officer takes his place, he not being his deputy, and the reason ceasing, the law ceases.

If the execution had excepted the sheriff of Stewart, we still would think that this sheriff of Stewart could have executed it, because the manifest intention of the exception was to affect that sheriff who was party to the execution ; but here it is directed to all the sheriffs of the state; he is one, and no party and not interested. Being sheriff of the county, he was the very best officer to execute its process where not interested, and to hold that he could not do so in this case would be to “ stick in the bar.” The words, “ except the sheriff of the county where the interested sheriff resides,” fix the true intent and spirit of the act; and the words, “ which may be levied, served and returned by the coroner, or other sheriff, or constable of the county,” strengthen the fastening of this meaning. The constable may act if not otherwise incompetent,though the process be not directed to him. Code, §4173. And so might the sheriff of Stewart, even if that officer had been excepted and the process not directed to him, if the direction of the first part of the section had been complied with, provided always he was not that interested sheriff at whom the act was aimed, and who was disqualified by it.

Judgment affirmed.