McInnis v. Parker

• Decision Date: 21 November 1938
• Docket Number: 33396
• Citation: 184 So. 418,183 Miss. 648
• Court: Mississippi Supreme Court
• Parties: MCINNIS et al. v. PARKER et al

184 So. 418

183 Miss. 648

MCINNIS et al. v. PARKER et al

No. 33396

Supreme Court of Mississippi, Division B

November 21, 1938

(Division B.)

SHERIFFS AND CONSTABLES.

Where sheriff failed to mark on execution the day of its receipt as required by statute, and defendants had no property out of which judgment could be satisfied, and the sheriff so returned on the execution, sheriff was not liable for the statutory penalty for failure to mark on the execution the day of its receipt, since the execution creditors were not damaged (Code 1930, sec. 2981).

HON EDGAR M. LANE, Judge.

APPEAL from the circuit court of Simpson county, HON. EDGAR M. LANE Judge.

Proceeding by E. W. McInnis and others against E. N. Parker and others to recover penalty on a sheriff's official bond. From an adverse judgment, plaintiffs appeal. Affirmed.

Affirmed.

McIntosh & McIntosh, of Collins, for appellants.

We hasten to admit that the question of actual damages is foreclosed against the appellants because the lower court found, after agreement of all parties litigant that the cause should be tried without a jury, that the judgment debtor had no property for the sheriff to levy upon within a reasonable time after he received the execution. However, we do contend that appellants are entitled to recover the statutory penalty of one hundred dollars because the sheriff failed to mark the time he received the execution thereon as is required by Section 2981 of the Mississippi 1930 Code.

We have been unable to find a decision of the Supreme Court of this state construing that part of the statute dealing with the failure to mark time of receiving process by the sheriff, however, the statute is so plain and unambiguous that it is deemed unnecessary to urge this point further than a simple reference to the statute itself. The first phrase of the statute stipulates that "the sheriff shall mark on all process the day of the receipt thereof by him . . .", and in announcing the penalty for failure to so do the statute continues, "and for failing to note the time of the receipt of the process, or, " thereby precluding any question as to the intent or the construction thereof.

The statute before us is a good and wholesome law which should be enforced as it is written, and when a sheriff refuses, without any cause or excuse to obey its solemn mandate, then he should be compelled to pay the penalty therein provided.

Edwards & Edwards, of Mendenhall, for appellees.

As appellants have abandoned all claim to damage, actual, and insist only that they are entitled to the statutory penalty of one hundred dollars we will answer this contention only. And in so doing we call the attention of the court to the language of Sec. 2981, Mississippi Code of 1930. A careful reading of this section shows that the party claiming this penalty must be an aggrieved party, and not merely a party to the execution or one having an interest in the process to be executed. And this being a highly penal statute it must be strictly construed.

Section 3317 of Code 1930 is the direction given the sheriff in the performance of the duty of serving an execution and we insist that this section was at least substantially complied with and that the appellant has not been aggrieved in the premises. This penalty is not to be inflicted arbitrarily upon an officer who has done nothing to the prejudice of the plaintiff in execution.

The fact that the defendants in execution had at the date of...