Brooks Oil Company v. Weatherford

• Citation: 91 Miss. 501,44 So. 928
• Court: Mississippi Supreme Court
• Decision Date: 02 December 1907
• Parties: BROOKS OIL COMPANY v. GEORGE W. WEATHERFORD

44 So. 928

91 Miss. 501

BROOKS OIL COMPANY v. GEORGE W. WEATHERFORD

Supreme Court of Mississippi

December 2, 1907

October 1907

FROM the chancery court of Newton county, HON. JAMES L. MCCASKILL Chancellor.

Weatherford appellee, was complainant in the court below; the oil company, appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Decree reversed and bill dismissed.

N. M Everett and Amis & Dunn, for appellants.

It clearly appears from the record in this case that the judgment in favor of the Brooks Oil Company against Weatherford had not been paid and therefore the court erred in retaining the injunction issued restraining the present sheriff, Adams, from proceeding to make the money on the execution issued on the judgment.

The payment of the amount of the judgment by Weatherford to Harper, sheriff of the county at the time, but who held no execution or other authority for collecting the judgment, was not a payment of the judgment. Harper had no authority whatever to receive the money. If Weatherford paid him the money as claimed he simply constituted Harper his agent, and if he failed to pay the judgment, the loss, if any has been sustained, should fall on Weatherford, and not on the Brooks Oil Company.

The sole question in this case was settled at an early date in this state. In the case of Wood v. Robinson, 3 Smed. &amp M., 271, the court said: "A sheriff has no authority whatever to receive payments for a plaintiff or take property without an operative execution in his hands." And also to the same effect see McFarland v. Wilson, 2 Smed. & M., 269; Crane v. Bedwell, 25 Miss. 512.

There is not even the slightest suggestion that the Brooks Oil Company or its attorney had requested or authorized Harper to collect the money due on the judgment.

George C. Tann, for appellee.

The record of this case shows that the judgment was paid to the sheriff of the county, and Wood v. Robinson and the other authorities cited by appellant are not in point. The question involved is, not whether the sheriff had authority to collect the money on the judgment at the time he did collect it, but whether his collection was not ratified by appellant, after knowing that the sheriff had the money.

The attorney for the Brooks Oil Company was told and understood that Harper had collected the money under execution but waited until after Harper died without paying over the money before he asked for an execution. No execution was issued until the 14th of December, 1905.

The clerk is required to issue execution on all judgments within twenty days after the adjournment of court, § 345, Code 1892. Sheriff Harper lived nine months after the adjournment of court.

The execution docket shows that there was no execution issued during all this time, and appellant knew that the sheriff had collected the money....