Fletcher v. Royse
| Decision Date | 19 May 1953 |
| Docket Number | No. 35665,35665 |
| Citation | 257 P.2d 507,208 Okla. 467 |
| Parties | FLETCHER v. ROYSE, Sheriff. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Statutes providing for the amercement of sheriffs or constables are penal in their nature, and like all other penal statutes, are strictly construed and held to apply only to default clearly within their terms. The party who seeks to amerce a sheriff must bring himself within both the letter and the spirit of the law.
2. Where evidence in amercement proceedings showed sheriff's failure to levy execution on goods of judgment debtor, and failure to make return of writ as directed resulted from sheriff following instructions of creditor's attorney to wait until specific property could be found, the trial court properly denied plaintiff's motion to amerce.
Vincent Harper, El Reno, for plaintiff in error.
Porta & Weaver, Rinehart & Rinehart, El Reno, for defendant in error.
In September, 1951, plaintiff recovered judgment against one Pettigrew for $2,530 and costs of $8.15, in a suit on a note. Pursuant to plaintiff's praecipe the court clerk issued execution on January 18, 1952, directing the county sheriff, respondent herein, to levy upon the judgment debtor's goods and chattels, and for lack thereof upon certain real property. The execution, returnable in 60 days, together with a typewritten memorandum of property to be levied upon, was delivered to respondent's office the same day. February 5, 1952, respondent's deputy called upon plaintiff to furnish an indemnity bond to protect respondent from any damages that might arise out of his levying the execution. Plaintiff purchased such bond ($5,000), which was approved by the county attorney, and delivered same to respondent's deputy. Respondent had knowledge of the execution, approval and delivery of the indemnity bond.
Respondent made no return of the execution to the court clerk and March 21, 1952, plaintiff filed motion to amerce respondent under the provisions of 12 O.S.1951 § 811. Such motion set forth the above facts and that respondent had failed, refused and neglected to return the execution within 60 days, and asked that he be amerced in sum of $2,603.80, plus the additional 10% provided by statute.
The motion was set for hearing, but the matter was continued and plaintiff filed an amendment to her motion, setting out that she had been required to expend $50 for an indemnity bond and asking that respondent be amerced such additional amount, plus 10%, together with a reasonable attorney fee, as damages.
The matter was heard April 12, 1952, respondent having filed no pleadings. Respondent testified he had received the execution but had made no levy upon any of the judgment debtor's property, and did not make a return of the execution within 60 days. He testified plaintiff's attorney advised him that he particularly desired the levy to be made upon certain trucks owned by the debtor (Pettigrew), and that he attempted to do this and regularly sought to find these trucks, but was unable to locate them. He advised the attorney of such circumstances, and the attorney told him to wait until it was possible to catch the trucks and levy upon them. It was plaintiff's theory and testimony that respondent's deputy had been asked to expedite the levy and make same as soon as possible; and, that respondent had not been requested not to levy the execution.
After hearing all the testimony the trial court denied the motion to amerce. Motion for new trial was heard and overruled, and plaintiff has appealed from the trial court's order.
Two propositions are urged as grounds for reversal. However, both are based upon the argument that the respondent rendered himself liable in amercement for failing and refusing to levy the execution, and in failing to return the execution with his action endorsed thereon within 60 days following issuance and receipt of the writ.
Plaintiff relies upon the provisions of 12 O.S.1951, § 751, and Sec. 811. The former section provides, in substance, that upon receiving a writ of execution the officer shall immediately levy upon the debtor's goods. If no goods are found such fact is to be endorsed upon the writ and the officer then shall levy upon any real property which may be liable to satisfy the judgment. If such property is encumbered by mortgage, or other lien, the property may be levied upon and sold subject thereto.
The latter section provides that for neglect or refusal of a sheriff to execute any writ of execution directed to him, or to return such writ to the proper court on or before the return day thereof, he may be amerced in the amount of the debt, damages and costs thereon for the use of the plaintiff or defendant as the case may be.
Plaintiff urges that since respondent failed, refused and neglected to levy on any of the judgment debtor's property pursuant to the writ, and because he failed, neglected and refused to return the execution within 60 days from the date thereof, that the rule announced in our early decision of Henderson-Sturges Piano Co. v. Smith, 33 Okl. 335, 125 P. 454, should be...
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