New Albany Wholesale Grocery Co. v. Wells

Sykes, J.,

delivered the opinion of the court.

Suit was instituted in the circuit court of Union county by W. M. Wells, sheriff, for the use of J. A. Jumper, against the New Albany Wholesale Grocery Company and Z. M. Stevens* for the sum of two hundred and fifty dollars based upon a bond signed by the defendants in accordance with section 2143 of the Code of 1906, W. M. Wells, the sheriff, had levied on a stock of merchdise which belonged to J. A. Jumper, and was about to sell the same under two writs held by him, when Jumper filed in accordance with law his claim to certain of this property as exempt. Whereupon the sheriff then demanded of the plaintiffs in execution a bond under section 2143 of the Code of 1906. This bond was signed by the defendants to this suit. The sheriff then proceeded with the sale, but failed to return the bond upon which this suit is based with his execution and attachment to the justice of the peace court.under whose writs he had made the sale. Shortly after the sale was made this suit was instituted. It is unnecessary to set out in full the pleadings in the case. Suffice it to say that the testimony showed that this bond was not returned with the papers to the proper justice of the peace court. On the other hand, the testimony of the sheriff shows that he considered that the bond was given to him to secure him personally from any liability, and that it was not his duty to file the same or return it to the court, and that he put it in a safe in the sheriff’s office. After the institution of this suit, and three or four years after the execution of the bond, at'the request of the attorneys for the appellee, this bond was then filed in the justice of the peace court. At the conclusion of the testimony the defendants in the court below, the appellants here, made a motion to exclude the testimony and for a peremptory instruction because of the failure of the sheriff to return this bond with the execution or attachment in accordance with section 2143 of the Code.

This motion should have been sustained. This exact question was settled in the case of Butler v. Aldus, 51 Miss. 47. In that case there was a special plea setting up the fact that the bond sued on was not delivered, because it was not returned with the attachment mentioned in the declaration, nor was it ever filed among the papers in said suit. The statutes relating to bonds in the Code of 1871 upon the proposition here involved are the same as section 2143, Code of 1906. In passing upon this question the court said:

“The third plea denies that any such bond was ever returned with the attachment, and the plaintiff, in his replication, avers and affirms that the bond was taken and returned with the attachment. The plaintiff therefore holds the affirmative of the issue and must prove it, and, having failed to do so upon the trial of the cause, the court did not err in excluding the bond as evidence. And it is believed that- it should have been returned with the attachment, and that there was no error, therefore, in overruling the demurrer to said third plea.”

The bond which may be taken under this sectibn of the Code is one specially for the benefit of the sheriff. If he return it with the papers into the proper court,, then he 'and the sureties on his official bond are protected from liability, provided this special bond is a solvent one. Being primarily for the protection of the sheriff, if the sheriff desire to take advantage of this bond, then it is his duty to return it into the proper court with the attachment or execution papers. If he fails to return it, then no vitality attaches to the bond. The sheriff and his official bond remain liable to the same extent as if no bond had been demanded by him under this section. The plaintiff has therefore sued the wrong parties.

The record fails to show that appellants are estopped to make this defense. The motion of the defendant to exclude the testimony and for a peremptory instruction should have been sustained. The judgment of the lower court is reversed, and a judgment will be entered here on behalf of the appellants.

jReversed and judgment here.