Arnold v. Wynn , 26 Miss. 338 ( 1853 )

Mr. Justice Fisher

delivered the opinion of the court.

The writ in this case was directed to the sheriff of Lowndes county, but it was returned executed by J. K. Pierce, J. P., (seal) acting coroner. Upon this return a judgment final by default was taken against the plaintiffs in error, and it is now insisted that the judgment is void for want of proper notice.

It is doubtful in which character the person executing the writ acted; whether as a justice of the peace or as a coroner. Giving to the letters “ J. P.” their usual signification, we must suppose that he acted as a justice of the peace; and this conclusion is greatly strengthened from the fact that the seal comes immediately after these letters, and the words “ acting coroner” follow the seal.

But it is not, perhaps, very important as to which office the party held, or in which he intended to act. He could only execute and return the writ when directed to him. He could only act as coroner when the sheriff was disqualified to act, and could only act as a justice of the peace when the sheriff and coroner were both disqualified, or in case of a vacancy in the office of coroner. The writ itself must be directed to the officer either as a justice of the peace or as coroner; otherwise he has no power to execute it. The rule may be different as to the sheriff, because it is appropriately within his line of duty to execute all writs returnable into the circuit court. His return is'conclusive evidence upon the parties to the record as to the facts which it contains, especially when the facts are such as he could legally return.

Not so, however, in regard to a writ executed by the coroner or j ustice of the peace, unless it is directed to the one to execute it.

It is only under special circumstances that either can perform the duties of sheriff’. Primd facie they have no such pow3?-When, however, they or either may be required to act, the writ itself must be properly directed. It is from the writ that they derive their power; and if it is directed to the sheriff, it is at once conclusive that neither the coroner or justice of the peaeí can execute it, because it contains the usual command to th“ officer whose duty it is by law to execute and return it.

The return in this case contains no legal evidence of service, because the act was not one which the pretended officer was required to perform; and, consequently, it cannot be treated as the act of a sworn officer. It is not an official act, and is, therefore, iio evidence of service.

Judgment reversed, and cause remanded.