Jeffreys v. Alexander

• Decision Date: 01 October 1928
• Docket Number: 27126
• Court: Mississippi Supreme Court
• Parties: JEFFREYS v. ALEXANDER, SHERIFF, et al. [*]

118 So. 301

151 Miss. 447

JEFFREYS v. ALEXANDER, SHERIFF, et al. ^[*]

No. 27126

Supreme Court of Mississippi

October 1, 1928

Division A

1. SHERIFFS AND CONSTABLES. Judgment creditor, in action against sheriff for failure to return execution, must prove failure to return execution by return day (Hemingway's Code 1927 section 3293).

Judgment creditor, in order to recover against sheriff under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), on account of failure of sheriff to return execution on or before return day thereof, must establish by proof a failure to return the execution by return day.

2. SHERIFFS AND CONSTABLES. Clerk's failure to properly indorse date of filing sheriff's return of execution will not render sheriff liable for statutory penalty (Hemingway's Code 1927, section 3293).

In case sheriff makes return of execution on or before the return day thereof, failure of clerk to discharge duty of indorsing on it the date of the filing, or indorsement of an erroneous date, will not prejudice the rights of the sheriff or render him liable for penalty fixed by Hemingway's Code 1927 section 3293 (Code 1906, section 4670), for failure to return execution on or before return day thereof.

3. SHERIFFS AND CONSTABLES. Parol evidence is admissible to show that indorsement or file mark of clerk on sheriff's return of execution was erroneous (Hemingway's Code 1927 section 3293).

In proceeding to subject sheriff to penalty under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), for failure to properly return execution, parol evidence is admissible to show that indorsement or file mark of clerk was erroneous, and that execution was returned on some other date; the memorandum indorsed by clerk on execution being only prima-facie evidence of when it was lodged in his custody.

4. SHERIFFS AND CONSTABLES. Evidence as to whether execution was returned by sheriff on or before return day held to raise issue of fact for chancellor (Hemingway's Code 1927 section 3293).

In proceeding to subject sheriff to penalty under Hemingway's Code 1927, section 3293 (Code 1906, section 4670), for failure to return execution on or before return day thereof, evidence relative to whether execution was returned on or before such return day held sufficient to raise an issue of fact for chancellor.

HON. J. L. WILLIMS, Chancellor.

APPEAL from chancery court of Washington county, HON. J. L. WILLIAMS, Chancellor.

Motion for judgment by J. M. Jeffreys against George B. Alexander, Sheriff, and others. Judgment overruling the motion, and plaintiff appeals. Affirmed.

Judgment affirmed.

E. Kellner, Jr., for appellant.

In order to sustain the motion it was incumbent upon appellant to show, first, the issuance to the sheriff of a valid execution, and second, that the sheriff failed to return the execution to the chancery clerk's office on or before its return day.

The appellees assailed the validity of the execution, first, on the ground that the defendants in the decree upon which the execution issued had tendered the property to the commissioner and that he had failed and refused to accept it, and second, on the ground that the deputy chancery clerk signed the name of the chancery clerk to the execution and failed to affix his name thereto as deputy chancery clerk.

In Wimberly v. Boland, 72 Miss. 241, 16 So. 906, this identical question was presented to this court. See Gamble v. Trahen, 3 How. 32. The only other question presented on this appeal is whether or not the execution was returned to the chancery clerk's office on or before the return day thereof, which was the first Monday of October, 1928. Murrah v. State, 51 Miss. 652; Jones v. Williams, 62 Miss. 183; Childress v. Carley, 92 Miss. 571, 46 So. 164; Steverson v. McLeod Lumber Co., 120 Miss. 65, 81 So. 788. If the file mark of the chancery clerk upon the execution was a part of the record, and I respectfully insist that it was, this evidence was conclusive that the execution was filed in the chancery clerk's office long after the return day thereof. 22 C. J., sec. 910, p. 799; Sweet v. Gibson, 83 N.W. 407; Beall v. Shattuck, 53 Miss. 358; Izod v. Addison, 5 How. 432.

Even though the file mark of the chancery clerk is not a part of the record and, therefore, conclusive evidence that the execution was filed long after the return day thereof, it is the only evidence in the record as to when the execution was filed in the office of the chancery clerk, and the execution being valid and properly issued the lower court erred in denying appellant's motion.

Percy & Percy, for appellee.

The suit is based upon the claim that the sheriff appellee failed to return an execution, which had come into his hands from the chancery court of Washington county in the suit of J. M. Jeffreys against R. D. Baskin, to the said chancery court on or before the return day thereof, to-wit, first Monday of October, 1926, the execution having been issued on May 11, 1926. In order to recover, the appellant must show: 1. that the execution was properly issued; 2. that it was a valid writ; 3. that it was not returned by the return day.

Our first contention is that this execution should not have been issued, the suit was upon a forthcoming bond. No execution could properly issue unless and until there had been a failure to deliver the property. There is no word of testimony offered to show a failure of delivery.

No valid execution was issued. The execution was signed L. M. Nicholson, clerk of said chancery court. Said signature was made by M. C. Strong, not by L. M. Nicholson. M. C. Strong was the deputy chancery clerk. He had no authority to sign Nicholson's name unless he possessed such authority by reason of his appointment as deputy chancery clerk. Process is required to be signed by the clerk. When not signed by him in personam, but by a deputy it must show the name of the principal and that it was affixed by the deputy. Felder v. Meredith, Walk. 447; Gibbens v. Picket (Fla.), 12 So. 17.

The foundation of appellant's case is that there was a failure to return the execution by the return day. Of course the burden of proving this rests upon appellant. He seeks to meet that burden solely by the endorsement made upon the execution by the deputy clerk filed June 10, 1927. This endorsement was made in the name of the the clerk but was affixed by the deputy clerk. The officer stated he had no personal recollection in regard to the matter.

It was practically impossible for this execution to have been in the sheriff's office from the date when it was returned, according to his books, until June 10, 1927. It was either in the sheriff's office or in the chancery clerk's office. The deputy in charge of this paper swears that it was not in his office but was returned.

The chancellor below heard the testimony of both witnesses and found as a matter of fact that the appellant failed to prove that the execution had not been returned properly.

Ernest Kellner, Jr., reply brief for appellant.

Appellees seem to be of the opinion that the oral testimony of M. C. Strong, deputy chancery clerk, was competent; however, they cite no authorities to overcome the very broad provisions of section 1974, Code 1906; section 1634, Hemingway's 1917 Code, that this testimony, in the absence of a sworn pleading, was incompetent and should have been excluded by the trial court. The cases of Felder v. Meredith, Walk. 447, and Gibbens v. Pickett, 31 Fla. 147, 12 So. 17, quoted from by appellees are clearly not in point. In these cases the process was signed by the deputy in his own name, without affixing the name of the principal officer, and in each case the court correctly held that the process was void. In the Felder case the process was signed "W. Baker, D. Clerk" and in the Gibbens case the process was signed "E. J. Murphy, Deputy Sheriff."

Percy & Percy, additional brief for appellee by request of court.

The court requests an additional brief upon a single point, namely; is the date of filing placed on the execution by the chancery clerk a part of the record which imports verity and conclusive evidence of the date when the execution was returned, or may this date be contradicted by parol? We shall address ourselves solely to this query.

We submit that the question of the court is completely answered by the decision in Bank v. Hoyt Bros. & Co., 74 Miss. 221. The facts in that case were that the appellant's counsel took the bill and an exhibit to it to the chancery clerk and that the clerk marked it filed and made an entry showing it had been filed in the general docket of the court. Identically the facts here. The question which the court considered was not whether the conduct of the counsel estopped him from claiming that the bill was filed but was whether in fact the bill was filed. Whether the notation "filed" made upon the bill and the entry into the general docket of the filing was conclusive evidence and the court answering the very query which is now propounded said that such endorsement upon the bill and such entry into the general docket by the clerk were evidence but not conclusive evidence. The court held that what was done with the bill did not constitute filing and that what was done with the bill could be proven by parol evidence to explain and contradict the endorsement made by the clerk. See 2 Wigmore on Evidence, sec. 1348; 17 Cyc. 580; 31 Cyc. 591; Harall v. Martin, 6 Ala. 587; Porter v. Kimball, 3 Lans. 330; Manion v. Brady (Iowa), 126 N.W. 801; 4 Wigmore on Evidence, sec. 2450C, Note; Franke et al. v. Alexander et al., 88 Mo.App. 35, Michals v. Stork, 52 Mich. 260; Nall v. Granger, 8 Mich. 450, 77 Am. Dec. 462; Jones v. Commercial Bank, 5 How. 43.

Ernest Kellner,...