Beall v. Shattuck , 53 Miss. 358 ( 1876 )

Campbell, J.,

delivered the opinion of the court.

Fred Beall moved against the sheriff and sureties on his bond to recover of them the amount of an execution, and interest and damages, with costs, because said sheriff failed to return said execution on the return-day thereof. On trial of the motion it appeared that the execution had not been returned by the sheriff to the clerk of the court from which it was issued, but that prior to the return-day the deputy of said sheriff had made an indorsement of nulla bona on said execution ; that it was put in the sheriff’s desk, which during the term was in the same room in which the court was held, and remained in said desk until the time when the motion was made or was about. to be made, when it was produced; and •that the plaintiff was an attorney practising in said court, and could have had the execution at any time, by applying to the sheriff at his desk in the court-room after court commenced.

The plaintiff asked the court to instruct the jury as follows, viz., “ It is the duty of the sheriff to return an execution on the return-day thereof to the clerk of the court from which the execution issues, and upon failure to do so he is liable for the amount of said execution, with interest and damages at five per cent; ” and it was refused. He also asked an instruction in these words, viz., “ If the jury believe from the evidence that A. A. Shattuck failed to return to the clerk of the Circuit Court the .execution on the first day of the term, they will find for the plaintiff; ” which the court refused to give as asked, bui^ modified it, and gave it in these words, to wit, “ If the jury believe from the evidence that A. A. Shattuck failed to return the execution on or before the first day of the term, they will find for the plaintiff.” The court instructed the jury for the defendants that if the execution had been indorsed nulla Iona before the return-day, and was in the sheriff’s desk in the court-room from the commencement of the term, and was all the time accessible to the plaintiff, who was an attorney of the court, not liable to be misled as to where the execution was, and that the court-room was used by the clerk as his office, the mere fact that the. execution was not marked returned in the clerk’s docket will not entitle the plaintiff to a recovery.

The instructions asked by the plaintiff state the law applicable to the case, and should have been given. Code, § 227. It is the duty of the sheriff to return any execution to him directed on the return-day thereof. One day afterwards is too late. Steen v. Briggs, 3 S. & M. 326. The return of an execution is the indorsement of the action of the officer on it, and its delivery to the proper custodian of the office out of which it issued. The indorsement by the officer is one thing, and the return to the proper office is another. Strictly speaking, the return is, as the word. imports, a return of tbe process to the office from which it issued, and the law requires the officer to note thereon how he hath executed the same. Code, § 228. Although the execution may have the officer’s indorsement on it, and may be in his pocket or a deputy’s, or in the officer’s desk in the court-room, it is not returned until it has passed from the custody and control of the officer to that of the clerk of the court from which it was issued. Nelson v. Cook, 19 Ill. 440 ; Jenkins v. McGill, 4 How. Pr. 206; Casky v. Haviland, 13 Ala. 314. Although the plaintiff was an attorney of the court, and could have easily obtained the execution by applying at the sheriff’s desk, and may have known this, he was not bound to go elsewhere than to the clerk for the execution, after the return-day. It should have been in the clerk’s office, and under the control of the clerk. Not being there, the sheriff was liable. It is true that the sheriff would not have been responsible for a failure of the clerk, in any particular, if he had returned the execution; but the instruction given for the defendants is erroneous, and should have been refused.

The judgment is reversed and cause remanded for a new trial.