Harrell v. . Warren , 100 N.C. 259 ( 1888 )

The defendant demurred to the complaint. Demurrer overruled. Appeal by defendant.

The action, begun by the issue of a summons on 21 March, 1887, is prosecuted by the plaintiff against the defendant for an alleged false return made by him as sheriff to an execution delivered into his hands in favor of John Smith against the plaintiff, and the recovery of the penalty given by section 2079 of The Code. The complaint filed is as follows:

The plaintiff, complaining of the defendant in this action, alleges:

1. That the defendant, James C. Warren, was duly and regularly elected sheriff of Chowan County at the regular election in November, 1884; that he qualified, according to law, on ___ December, 1884; gave bonds, which were approved and accepted by the proper authorities; was inducted into and took possession of said office of sheriff, and became and continued from that date to be the duly qualified and (261) acting sheriff of Chowan County until his term expired, according to law, in December, 1886.

2. That at Spring Term of the Superior Court of Chowan County for the year 1885, in an action therein pending, a judgment was rendered, in all respects regular and valid, after due notice to this plaintiff, who was a party thereto, in favor of John Smith and against James A. Harrell (this plaintiff) for the recovery of a certain horse, described in the complaint in said action, or for one hundred dollars and interest on same from date of undertaking in said action, if delivery could not be had, and for the recovery of the sum of twenty-four dollars and fifteen cents, costs of said action, and that said judgment was regularly docketed in said Superior Court at said term.

3. That on 31 August, 1886, said judgment having before then been settled, except as to the costs, and only a part of said costs having been paid, an execution was issued from said Superior Court of said county, directed to the sheriff of said county, commanding him to cause to be made the sum of twenty-two dollars and fifteen cents of the goods and chattels, lands and tenements of James A. Harrell (this plaintiff), and to return same with said execution to said Superior Court on the fourth Monday after the first Monday in September, 1886.

4. That said execution, a copy of which is hereto attached, marked "B" and made a part of this complaint, was delivered to said James C. Warren, sheriff as aforesaid, and that said Warren, under and by virtue thereof, on 2 October, 1886, levied upon the goods, wares and merchandise in a store in Edenton, in possession of said James A. Harrell (this plaintiff); locked said store; refused, on demand of Harrell, to have his exemptions allotted, and kept the keys of said store for several (262) days, the goods in the meanwhile being locked up in said building.

5. That this plaintiff, on 6 October, 1886, paid to said James C. Warren, sheriff as aforesaid, on and in part satisfaction of said execution, the sum of two dollars and fifty cents.

6. That, after keeping said Harrell's goods, wares and merchandise in his custody for several days, and after being paid by Harrell on said execution the sum of two dollars and fifty cents, as stated, the said Warren, sheriff as aforesaid, returned said execution to said Fall Term of Chowan Superior Court, which began on 4 October, 1886, with a return endorsed thereon, signed by him as sheriff, in the following words:

"Levy made; fees demanded for laying off exemptions, and not paid. No further action taken.

(Signed) J. C. WARREN, Sheriff."

7. That said return made by said Warren as sheriff on said execution was a false return, in that it did not state that he had collected any money on the same.

8. That this plaintiff, James A. Harrell, is the party aggrieved by said false return as he still appears by said return as owing the full amount of said execution, and therefore he brings this suit to recover the penalty prescribed of five hundred dollars.

9. That before bringing this action he demanded of said Warren payment of said sum, and that said Warren refused to pay the same.

Wherefore, plaintiff demands judgment against said defendant for the sum of five hundred dollars and for costs of this action.

The defendant demurred as follows:

(263) "The defendant demurs to the complaint in this action because the facts therein set out do not constitute a cause of action, for that:

"1. It does not appear that the return of the sheriff is false in fact.

"2. It does not appear that the return of the sheriff was not a due return in the meaning of the act.

"3. That if any cause of action is set out in the complaint the penalty recoverable for the same is less than two hundred dollars, and this court has no jurisdiction of the same.

"Wherefore, defendant demands judgment that he go without day and recover his costs."

The court adjudged that the demurrer of the defendant be overruled and that the defendant be allowed to answer, and that the plaintiff recover of the defendant the cost of the term. From this judgment the defendant appealed to this Court. The case has not been argued for defendant, and besides the specific grounds assigned in the demurrer we meet at the threshold the question whether any cause of action upon the facts stated accrues to the plaintiff, and this objection has been disposed of in cases heretofore before the Court.

In Martin v. Martin, 5 Jones, 346, it is decided that any person may sue for the penalty, and he need not mention the other party to whom the statute gives one moiety of the recovery. The same point was made and though not specially mentioned in the opinion was necessarily overruled in the judgment rendered for the plaintiff in the later case of Peebles v.Newsom, 74 N.C. 473.

Nor is the objection taken in the demurrer to the jurisdiction (264) tenable, based upon the suggestion that only $100 are recoverable according to section 1112 of The Code, the claim to which must be made in a justice's court.

The present action is not brought under that section which belongs to the chapter entitled "Crimes and Punishments," but to enforce the enactment contained in section 2079, which has long been the law, and which this Court decided, in Martin v. Martin, 5 Jones, 349, was restricted to civil process and false returns made thereto by sheriffs. At the time of this ruling the penalty of $100 imposed for false returns made to criminal process was restricted to constables, and forms part of the chapter (section 118) devoted in the Revised Code to crimes and punishments. In its transfer to the present Code its scope has been enlarged and made to embrace sheriffs, constables and other officers, state or municipal, but is still confined to criminal process delivered to such officer as is bound to execute it. There is, therefore, no unauthorized assumption of jurisdiction, and the suit is brought in the proper court.

The main and essential matter is, Has a false return been made? Not aninsufficient return — for this is punished less rigorously and in a more summary way. There must falsehood in the statement of facts be found in the return in order to incur the $500 penalty, and for this inadvertence or mistake furnishes no excuse and no protection to the officer. So it is held in Tomlinson v. Long, 8 Jones, 469; Albright v. Tapscott,ibid., 473; Finley v. Hayes, 81 N.C. 368, and in Peebles v. Newsom,supra.

It appears from the plaintiff's allegation that the defendant refused, on demand of the plaintiff, who was defendant in the execution, to separate from the stock of goods levied on and assigned to the plaintiff his exempted part thereof, the reason for not doing which is set out in the sheriff's return. There is no averment in the complaint that the statement is untrue or that the demand of the sheriff for his fees (265) was not made and refused, and that in consequence the sheriff did not proceed further. There is so far as shown no falsehood in this part of the return, and no action can be maintained for the statutory penalty given for a "false return."

The numerous adjudged cases fully sustain this interpretation of the enactment and of its purposes, as will be seen by a reference to some of those most pertinent to the present inquiry.

A sheriff's return, "Not to be found in my county," was declared to be false when no effort had been made to find the party, because "not to be found" implies and means that a search has been made, and this is untrue.Tomlinson v. Long, 8 Jones, 469.

"Too late to execute" was so held in Lemit v. Freeman, 7 Ired., 317, where the process passed into the sheriff's hands more than ten and less than twenty days before the term of the court to which it was to be returned.

In Lemit v. Mooring, 8 Ired., 312, the sheriff sought to excuse the neglect to execute the writ, and returned in substance that himself and his deputies were officially and so constantly employed as to be unable to serve it after it was received; in reference to which Ruffin, C. J., remarks, in regard to incurring the penalty, that "to have that effect it (the return) must be false in point of fact, and not false merely asimporting, from facts truly stated, a wrong legal conclusion."

But the subject is very clearly discussed and the true meaning of the statute, in its application to these officers, ascertained and declared by the late Chief Justice in the opinion delivered by him in Martin v. Martin,supra, from which we quote, instead of further comment of our own, as settling the law:

"``Not satisfied' is an insufficient return to a writ of fieri facias, for the reason that it does not set forth the ground upon which the (266) officer has failed to make the money. But it may, nevertheless, be a false return. For instance, suppose the officer made the full amount required by the execution, and returned it ``not satisfied.' Such a return is clearly false; it may be he has made only a part of the amount, and without any reference to the part received returns it ``not satisfied'; it would not be a false return, because, taking it literally, the execution is not satisfied, and the return may have referred to that part merely. But when, as in our case, the return is made in reference to the part received, and sets forth a payment in January, and another inMarch, suppressing the fact of the other payment in February, then ``not satisfied' is used in the sense of not satisfied as to the residue, and is necessarily false in respect to the payment suppressed."

This is a very lucid exposition of the enactment and dispenses with further observations from us.

Assuming as we must, for the purpose of the demurrer, the truth of every averment of fact contained in the complaint, there is no conflict between it and the return that brands the latter with falsehood, and such repugnance is essential to the action.

The defendant, in order to a full and proper response to the writ, ought to have made mention of the small payment made him, and in this particular the return is defective, yet he says nothing to the contrary, nothing false in fact; and the omission to do what ought to have been done in making his return does not bring the sheriff under this condemnation of the statute — an enactment so severe as not to excuse when there is a mere mistake and no intentional deceit practiced. Peebles v. Newsom, supra.

There is error. The judgment must be reversed and the demurrer sustained.

Error. Reversed.

Cited: Mfg. Co. v. Buxton, 105 N.C. 75; S. v. Berry, 169 N.C. 372.

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