Tapp v. Bonds ( 1879 )

George, C. J.,

delivered the opinion of the court.

The plaintiffs in error made a motion in the Circuit Court of Lee County against the sheriff of Itawamba County and his sureties, under § 227 of the Code of 1871, to recover the amount of an execution in their favor, issuing from the circuit clerk’s office of the first-named” county, upon the ground that the said sheriff had failed to return the same on the return-day thereof. The motion showed that the execution was received by the sheriff on September 20,1877, and was returned by him to the proper office on the twenty-fourth day of the same month, when the process was not returnable till the third Monday in February, 1878. A demurrer was interposed to the motion on several grounds: 1st, that the motion should have been made in the Circuit Court of Itawamba County, m which the sheriff resided; 2d, that the motion showed on its face that the execution was properly returned; 3d, that the sheriff's term of office had expired, and he was no longer subject to be proceeded against by motion. The court sustained the demurrer and dismissed the motion.

The first ground of demurrer is not well taken. The motion was properly made and determined in the court to which the execution was returnable, and not in the county of the residence of the defaulting officer. Cox v. Ross, 56 Miss. 481. It is insisted in support of the motion that the Statute (Code 1871, § 227) requires the return of the execution to be made on the very day named in it as the return-day, and that a return of it before that day is equally a violation of the law as a return made afterwards. We do not consider this a just construction of the statute. It is true the statute says, “ if any sheriff, coroner, or other officer shall fail to return any execution to him directed, on the return day thereof.,” the plaintiff shall recover; but we do not consider that this means that the act of making the return shall be performed on that day and no other. The object of the statute was to secure the presence of the execution in the clerk’s office from which it emanated, with the proper return of the sheriff thereon, on the day to which it was made returnable, so that the plaintiff might inspect the same, and ascertain how the sheriff had executed it. This object would be as well secured by the return and deposit of tbe execution in the clerk’s office before the return-day as it would be by the performance of these acts on that very day. If the sheriff has obtained the money on an execution, or has ascertained that he cannot make it or any part of it, no good purpose could be subserved by his retaining the writ. Crocker on Sheriffs, § 427 ; Lewis v. Garrett, 5 How. 434.

If the sheriff fails to retain the execution long enough to ascertain fully that nothing can be made out of the defendant, and, by a premature return, loses an opportunity of obtaining the money, or some part of it, whereby the plaintiff is damnified, he would be liable for such damages as were incurred by his neglect, but for nothing more. Sect. 225 of the Code makes it the duty of the sheriff to execute every writ or other process to him directed, and to make due return thereof “ on the day to which the same is returnable,” and imposes a fine not exceeding one hundred dollars for each failure therein. The language in this section requiring the return of process to be made on the return day thereof is just as strong as in § 227 under consideration, yet it has never been supposed that if a summons, subpcena, or writ of venire facias was returned before the return-day, the sheriff would be liable to the fine.

We do not think the third ground of the demurrer well taken; to wit, that the motion cannot be maintained against the sheriff after his term of office has expired. We perceive no good reason why the motion should be allowed as to a sheriff while in office and denied as against the same person for the same default as soon as his term has expired. The object of the statute is to require prompt performance of their duties by sheriffs, and to give plaintiffs in execution ample remedy for the particular fault of hot returning an execution in proper time. A large part of the efficacy of the statute would be destroyed, if its operations were cut short as soon as a sheriff went out of office. The language of the statute makes no distinction between sheriffs in office and those whose terms have expired. So far as relates to the question we are now considering, it is the same as § 229, which gives the remedy by motion against sheriffs for failing to pay over money collected on execution. In Laughlin v. Wright, MS., decided by the High Court of Errors and Appeals, it is conceded that a motion will lie against a sheriff and his sureties after the expiration of his term, to compel a payment of money collected on execution, and in the case of Livingston v. McCloy, MS., decided by the Supreme Court, such a motion was sustained. The same conclusion has been reached in Barton v. Peck, 1 Stew. & Port. 486 ; Buckmaster v. Drake, 6 Gilman, 321; Beaird v. Foreman, 1 Scammon, 40. And in Earl v. Smith, 26 Texas, 522, it was held that a similar statute of that State allowed the motion, after the sheriff’s term had expired, for a failure to return an execution. We see no good reason for restricting the operation of the section as contended for.

Judgment affirmed.