Memphis Grocery Co. v. Anderson , 76 Miss. 322 ( 1898 )

Woods, C. J.,

delivered the opinion of the court.

It is certain that no certificate or writ of supersedeas was ever issued after the bond for appeal was given, and, of course, there was never any delivery or service of such certificate or writ to the sheriff, and until official notice had been given that officer, it was his duty to obey the j udgment of the court, which directed him to turn over and deliver the twin engine to the successful claimant. Whether he might have turned over the engine on failure of the plaintiff in attachment, for more than five clays, to perfect an appeal from the j udgment in favor of the claimant, under § 173 of the code of 1892, or whether he might have turned over to the claimant the engine, on failure of the plaintiff in attachment, who lost on the claimant’s issue to take an appeal for more than twenty days, the period within which, under § 3459, of same code, clerks of courts are required to issue executions, we need not determine on the facts of this case. Nearly four months elapsed after judgment .in favor of the claimant before an appeal was taken or bond for supersedeas given by the unsuccessful plaintiff in attachment, and surely, within that long interval of time, the appeal with supersedeas might and should have been taken, and on plaintiff’s failure and delay to act for that period, the sheriff was authorized and required to turn over the engine to the successful claimant, who had secured a judgment directing the sheriff to.do that very thing. It cannot be contended, with reason, that the sheriff’s duty was to disregard the j udgment of the court for two years, and wait to see whether an appeal would be prosecuted within the two years within which appeals may be taken under our law. That a writ of supersedeas was required to be issued, and necessarily to be delivered to or served upon the sheriff, is plainly implied by § 49, code of 1892, which declares that “a supersedeas shall not issue until such bond shall have been given,” as well as by § 60 of the code, which also declares, “ except as herein otherwise provided, an appeal shall not be considered as perfected, or a supersedeas awarded thereon, unless the bond required shall have been given and approved.” The requirement that a writ shall issue and be served is a simple one and one easil}' to be complied with. It is of vital importance to the officer holding a writ, or obeying the mandate of a court, since compliance with this requirement alone affords protection to him for failure to execute the writ or obey the mandate.

In the present case, as has been stated, no writ was ever issued, nor was the sheriff officially notified of an appeal with supersedeas. In this state of case, the property—the engine—• was taken possession of by an agent of the claimant and shipped out of this state. This action of the claimant’s agent imposed no liability upon the sheriff, for he might then have reasonably and properly have himself delivered the property to the claimant, as, by the judgment of the court, he had been ordered to do some four months previously. But, without reference to our statutes, it appears to be well settled that to make a supersedeas effective the writ must be served upon the officer whose action is sought to be restrained by the supersedeas. The authorities are uniform on this point, so far as our examination has extended. Payne v. The Governor, 18 Ala., 320; Runyon v. Bennett, 4 Dana, 598; Foster v. Wiley, 27 Mich., 244; Hopkinson v. Lears, 14 Vt., 494; Bryan v. Hobbs, 69 N. C., 423; and Foster v. Kansas, 112 U. S., 201.

The action of the court below in giving the peremptory instruction for appellee was correct. •

Affirmed.