Hamilton v. Pan Am. Southern Corp., 5-3241
Decision Date | 27 April 1964 |
Docket Number | No. 5-3241,5-3241 |
Parties | E. O. HAMILTON, Sheriff, Appellant, v. PAN AMERICAN SOUTHERN CORPORATION, Appellee. |
Court | Arkansas Supreme Court |
John Dale Thweatt, DeVals Bluff, Moses, McClellan, Arnold, Owen & McDermottand
James R. Howard, Little Rock, for appellant.
Roy Finch, Jr., and Thorp Thomas, Little Roch, for appellee.
The principal question involved in this appeal relates to the liability of a sheriff for failing to make a statutory return on an execution. Most of the facts involved are not in dispute. The ones presently set out are not questioned.
Facts. In 1956 appellee, Pan American Southern Corporation, secured a judgment in the Pulaski County Circuit Court against one R. W. Coyle in the sum of $2,782.42. The judgment not having been paid, appellee's attorneys had an execution issued by the Pulaski County Circuit Clerk against Coyle, directed to the sheriff of Prairie County, in which county Coyle was living. The execution was dated August 30, 1961 and was signed: 'Roger McNair, Clerk, by Martha Deaton, Deputy Clerk'. It is agreed that the sheriff was obligated by statute, Ark.Stat.Ann. § 30-431 (Repl.1962), to make a return within 60 days after the date of issuance. It is also agreed that the return must be made to the clerk of the issuing county--in this instance, Pulaski County. The sheriff of Prairie County (appellant) did not return the execution to Pulaski County until several months after it was due to be returned.
Ark.Stat.Ann. § 29-208 (Repl.1962), in all material parts, provides that judgments shall be rendered for the plaintiff against the sheriff * * * 'For failing to return an execution; the amount of the judgment on which it was issued, including all the costs and ten (10) per centum thereon'.
Based on the above statute, appellee, in October, 1962, filed a Motion for Summary Judgment against appellant (E. O. Hamilton, Sheriff of Prairie County) in the amount of the judgment (together with interest) previously rendered against Coyle, plus 10% penalty. Appellant, in answering, in substance, contended, among other things, that '* * * there was no indication on said execution showing from which county or court it was issued * * *' and that, thinking the execution was issued by the clerk of Prairie County, he made proper return to said clerk within the time provided by law (60 days).
A jury trial resulted in a verdict and judgment against appellant in the amount of $4696.27.
Appellant relies on three separate grounds for a reversal. We find no error based on the first and third grounds, and will therefore discuss them only briefly.
It was not error for appellee's attorney, on voir dire examination of the jury, to ask if any juror worked for an insurance company, since the law requires a sheriff to provide a surety bond. The question here raised by appellant was decided against his contention in Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762. Neither do we find any merit in the third ground. There the court refused appellant's requested Instruction No. 2, and properly so. The instruction permitted the jury to find appellee waived any rights it had under the statute. We have searched the record diligently and find no evidence to support such instruction.
The Issue. The decisive issue, and the one which we think calls for a reversal, arises out of the court's refusal to give appellant's requested Instruction No. 1. It reads as follows:
(Emphasis added.)
First, appellee contends the court was justified in refusing to give the above instruction because of the words we have emphasized. That is, appellee says it is not undisputed that appellant returned the execution to the clerk of Prairies County before the 60 days had expired. We do not agree with appellee. The copy of the execution (in the record) shows it was returned on October 26, 1961, singed by the sheriff, stating no property was found in Prairie County. Foster, the deputy...
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