Brooks Oil Co. v. Weatherford , 91 Miss. 501 ( 1907 )

Calhoon, J.,

delivered the opinion of the court.

The Brooks Oil Company obtained a judgment against Weatherford in July, 1904. Afterwards, but before any writ of execution had issued, the then sheriff told him to* pay the money to him, and thereby avoid the costs of the issuance of the writ of execution. Accordingly the sheriff was paid the money by Weatherford, and subsequently the costs of the case were caused to be paid to the circuit clerk. The sheriff had told the clerk of this payment to him, and not to issue execution. The sheriff did not pay the amount of the judgment, or any of it, to the plaintiffs in the action, the appellants here, or to the clerk. After this the appellants caused an execution to be issued, which is the only execution in the case, and a levy was made on property of Weatherford’s and he enjoined the sale of the property levied on, and the chancellor’s final decree sustains that injunction and makes it perpetual.

It appears that the attorney for the plaintiffs below had been told of this payment by Weatherford to the sheriff, after the payment had made; but neither he nor plaintiffs had made any previous request of that sort, nor done any act in ratification. No_ voluntary payment to the sheriff can have any effect. That officer can only collect money when he has proper process to make the collection. When the payment was made to the sheriff, he was simply the agent of Weatherford, and, if he did not pay it over, Weatherford must look to him for it. The sheriff without the process was a mere private citizen. Wood v. Robinson, 3 Smed. & M., 271; McFarland v. Wilson, 2 Smed. & M., 269; Crane v. Bedwell, 25 Miss., 507, cited by counsel.

The decree making the injunction perpetual is reversed, the injunction is dissolved, and the bill is dismissed.