Mulford v. Roberts , 112 Miss. 573 ( 1916 )

Cook, P. J.,

delivered the opinion of the- court.

The appellant procured a judgment in the justice •of the peace court against one S. H. Deen, had an •execution issued thereon, and placed samé in the hands <of appellee'L. T. Boberts, wbo was tbe sheriff of tbe county.. Tbe sheriff was directed to levy on a certain " warrant issued ‘.by the board of supervisors to tbe execution-debtor, which warrant was then in the custody of " the chancery clerk. The sheriff delivered the execution to a deputy. The deputy went to the office of the chancery - clerk, and there found the warrant, but did not take same into his possession. The deputy made the following return on the execution, viz.:

-“".Executed the within writ by levying upon a certain -county warrant No. 553, issued on July 5, 1912, drawn in favor of S. H. Deen for the sum of two hundred sixty-five dollars, as the property of said S. H. Deen,. which said warrant when levied upon was in the possession of the chancery clerk of Lawerence county, "Miss., and said chancery clerk was then and there notified that I had levied upon said warrant by virtue of the within execution, whereupon the said chancery clerk took this execution and pinned it to said warrant so ‘levied upon. ‘This 5th day of July, 1912. L. T. Boberts, Sheriff, by W. T. Holmes, D. S.”

Thereafter, and on the return day of the execution, the sheriff made this additional return on the execution, 'viz.:

• “I‘have further executed the within writ by going in person on the 6th day of July, 1912, to the office of the chancery clerk of Lawrence county, Miss., and levying--upon and taking into my possession a certain county -warrant No. 533, issued on the 5th day of July, 1912, ■ Brawn in favor of S. H. Deen, for the sum of two hundred sixty-five dollars, and of the value of two hundred sixty-five dollars, as the property of S. H. Deen, and by 'then and there declaring to the said chancery clerk in -whose official custody I found said warrant that I 'wished to take out all warrants that I had in his office ■and take same into my possession, meaning to take this -one under this writ, and after having taken the warrants into my possession, I left them there to be registered as required by law to be done, and I again fastened this writ of execution to said warrant as a warning to all parties that it bad been levied npon and taken into mv possession, and the said chancery clerk well knew that this had been done, and I also notified the said S. H. Deen I had levied npon the said warrant under this writ, at which time I was informed by the said Deen that Mr. John H. Arrington had some interest in said warrant. I also notified the said Arrington that I had levied npon the said warrant under this writ, who then and there stated that he would file claimant’s affidavit for the same, and after a short time I returned to the said chancery clerk’s office, where I had left the warrant to be registered, and, going to the place where I had left the same, I found that it had been removed by the said S. H. Deen and Arrington, as I was informed, and I immediately telephoned the Bank of Monticello and the said Arrington that I had levied upon the said warrant, and requested that the warrant be returned to me, which request was refused, whereupon, on the-day of July, I caused a writ of replevin to be issued for the said warrant and served upon the said bank, and the said bank thereupon gave bond as provided by law for the delivery of said warrant or its value to the circuit court of Lawrence county on the first Monday of August, 1912, when and where said re-plevin writ was made returnable, copy of which said bond, duly certified to, is herewith returned as a part hereof. Given under my hands this the 27th day of July, 1912. L. T. Roberts, Sheriff of Lawrence county.”

Thereafter an additional and final return was made as follows:

“The Estate of Mississippi, Lawrence County. Now, for further and final returns hereon, I would show that on the 9th day of August, 1912, the case of Roberts, as sheriff, against the Bank of Monticello, filed in the circuit court of this county, as heretofore reported, and, the same having been presented to the court, the court found for the defendant therein and that the Bank of Monticello was entitled to hold the property in question as against the said plaintiff, Roberts. I therefore have no property or. money to return into this court under said execution and levy, and asked to, be discharged with my reasonable cost. L. T. Roberts, Sheriff of Lawrence County.” .

The evidence .taken at the trial shows that there was an attempt to levy the execution by pinning the same to the warrant and by pinning both to the stub in the warrant. It is claimed that the chancery clerk asked that the warrant be left with him for registration; but'the chancery clerk denies this.

Before the sheriff got the warrant in his possession another person got possession of the warrant. by assignment, and what the sheriff then did to get the warrant into his possession is shown by the return. Briefly stated, the sheriff never took the warrant into his possession and under his control, but after he had made an abortive attempt to levy the execution, the warrant was delivered to the Bank of Monticello, and thereupon the litigation to gain possession was begun and resulted in his failure to get the warrant. It was the duty of the sheriff to take into his possession the warrant pointed out to him, and the question is: Did he do it!

The sheriff, testifying as a witness, in response to a question as to whether he did take possession of the warrant, said that he attempted to take possession, but he did not quite succeed in his attempt. There is another notable feature of this record; the deputy (!) appointed to serve the execution was never sworn in as such, and was not appointed in writing to servé the process. The law prescribes the method for levying process upon personal property. Section 3964, Code of 1906. The sheriff in this -case did not pursue the way marked out by the statute, and, never having taken into his possession the property in question, he had no right to the possession of same, and Ms efforts to secnre possession by snit were, of course, futile. The rights of the judgment creditor may not be determined by an action of replevin instituted by the sheriff against strangers to the record, especially, when it appears that the sheriff did not take into his possession the property involved.

The course adopted by the sheriff was perilous, as the result demonstrates. It was easy for him to have put the burden on the claimants, but he assumed the burden himself, failed in his efforts to support it, and he must suffer the consequences.

As we read this record, the learned circuit judge erred in not directing the jury to find for the plaintiff, for it is plain that the sheriff did not travel the blazed way, and the execution creditor was without remedy for his neglect, save by this suit. Instead of directing a verdict for plaintiff, the court took the opposite course, by directing a' verdict for defendant.

The relative rights of the plaintiff in execution and the claimants of the warrant could not be adjudicated in this suit, for the reason that there had been no legal levy of the execution.

Reversed and remanded.