Milburn v. State ex rel. Ray

• Decision Date: 31 October 1847
• Citation: 11 Mo. 188
• Court: Missouri Supreme Court
• Parties: MILBURN v. STATE, TO USE OF RAY & WIFE.

11 Mo. 188

MILBURN

v.STATE, TO USE OF RAY & WIFE.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, for Appellant.

1. The writ and the return thereof, being prescribed by the statute, it is not in the power of the party, the clerk or even the court, to cause a different writ to be issued. And so, the writ was void from the beginning. 3 Mo. R. 286, Holliday v. Cooper; 5 Wend. R. 276; 9 Wend. R. 338. 2. The writ being void, the sheriff was not bound to execute it or return it at all. 3. But if not void, still its requirements being inconsistent, the sheriff ought to obey the most important requirements, to the neglect of the least important, when both cannot be done. This writ requires to be returned on the 13th of November at the court-house before the judge, which taken with the seventh section necessarily means in open court. Now there was no court on that day; the judge was not required to be at the court-house. The particular day of the return is not very material; but it is material that it should be returned to the court that issued it whose duty it is to see that its own process is not abused--that it is rightly issued, executed and returned. 4. The sheriff could not return this writ to the first term after it was issued, because the return day named was after that term; and the return of a writ nulla bona before the return day is merely void. Cro. Eliz. 512; 1 Back. on Sheriff, 259. And he did actually return it to the next term after the return day, for the agreed case says, it was “filed in open court.” And this we submit is all he could do. All mesne process ought to be returned; but when final process has issued, on which no judgment or her process is to be had--as a fi. fa. which levied the whole debt, no return is necessary. 5 Coke, 90; Cro. Eliz. 209; our statute, however, does require a return

LESLIE & LORD, AND HAIGLT, for Appellee. This is an action against the sheriff for not returning an execution founded on the statute laws of 1835, § 52, p. 260. 1. The sheriff is positively liable, and there is no necessity to prove damage or make a demand. Douglass et al. v. Baker, 9 Mo. R. 41; Sublett & Campbell v. Melton et al. 8 Mo. R. 417. 2. Executions by the statute of 1835, were to be returned to the next term of the court. It being admitted by the case made, that the day upon which the writ was made returnable, was after the adjournment of the November term for that county, was the sheriff bound to execute the process? As to void and voidable executions, see 2 Burr, 1187; 9 Johns. 385; 3 Cowen, 303; 3 Graham's Pr. 316-17; as to the time of issuing, 1 Cowen, 736-79; Graham's Pr. 316-17; 8 Cowen, 192; 2 Caine, 62, note. 3. If the process is only voidable, the sheriff is bound to execute--voidable process is good till set aside. Watson on Sheriff, 5 Law Lib. 53; 2 Saunders, 101, note 2; 8 Cowen, 192; 4 Cranch, 332; 10 Peters, 477; 4 Bibb, 332, Wilson v. Huston. Equities between parties do not come into this case.

NAPTON, J.^a1

This was an action on the official bond of Milburn, as sheriff of St. Louis county, and the breach assigned was, that Milburn did not return a certain execution as he was commanded to do. The defendant pleaded, 1st, non est factum; 2nd, that he did return the execution on said 13th November, 1843; 3rd, that he returned the execution during the term at which it was returnable; 4th, that defendant kept back the execution with the knowledge and consent of plaintiffs. Issue was taken on these pleas. The defendant by leave, filed as additional pleas, 1st, that the execution was not returnable to any term of the Circuit Court of Macon county; 2nd, that the return day mentioned in the execution was not a day in any term of the Circuit Court of Macon county; 3rd, same as second, with the addition, that defendant made return of the execution, at the term of said court next after the return day mentioned in the writ.

The case was finally submitted to the Circuit Court upon the following agreed state of facts: “On the 31st day of December in the year 1841, at the December term of the Circuit Court held in and for the county of Macon, Emeline Dodd by the consideration and decree of said court, recovered against one Benj. Dodd, as alimony and for maintenance, the sum of five hundred dollars and costs of suit, and afterwards on the 20th day of April 1843, an execution was sued out of said Macon County Circuit Court by said Emeline Dodd against said Benj. Dodd, directed to the sheriff of St. Louis county, by which said execution the sheriff was commanded of the goods and chattels and real estate of the said B. Dood, he cause to be made the said sum of five hundred dollars and seven dollars and fifty cents costs, and that he have the said writ before the Judge of the said Macon Circuit Court at the court-house of the town of Bloomington, in said county of Macon, on the 13th day of November, 1843, to satisfy the same, and that he should certify to the said Judge how he had executed the said writ, and that the said sheriff should have then...