Redwine v. Alexander

• Decision Date: 27 November 1951
• Docket Number: No. 34920,34920
• Citation: 241 P.2d 376,206 Okla. 106
• Parties: REDWINE et al. v. ALEXANDER.
• Court: Oklahoma Supreme Court

Page 376

241 P.2d 376

206 Okla. 106

REDWINE et al. v. ALEXANDER.

No. 34920.

Supreme Court of Oklahoma.

Nov. 27, 1951.

Rehearing Denied Feb. 26, 1952.

Application for Leave to File Second Petition for Rehearing

Denied March 11, 1952.

Syllabus by the Court.

1. Statutes providing for amercement of sheriffs are penal in their nature, and like all other penal statutes, are strictly construed and held to apply only to a 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. An order for delivery of personal property in replevin issued under 12 O.S.1941 § 1574 is not a writ of execution within the terms of the amercement statute, 12 O.S.1941 § 811, and a default in the handling of same by the sheriff may not be made the subject of amercement under that statute.

Hulsey & Hulsey, W. N. Redwine and W. J. Hulsey, all of McAlester, for plaintiffs in error.

Geo. L. Hill and Kirksey M. Nix, McAlester, for defendant in error.

BINGAMAN, Justice.

The plaintiff in error commenced an action in the District Court of Pittsburg County against R. D. Johnson and Ida Johnson, for the replevin of certain livestock valued at $500.00. On June 13, 1950, an order of replevin was duly issued to the Sheriff of Pittsburg County. The writ was received by the sheriff on the 14th day of June, 1950, at 4:00 o'clock P. M., and on the 15th day of June, 1950, at 9:00 o'clock A. M., he served the writ on the defendants and seized possession of the personal property therein specifically described. For convenience the sheriff left the livestock in the possession of the defendants, after the levy. Following the expiration of twenty-four hours, no redelivery bond having been made, the plaintiffs sought to obtain delivery of the livestock. The sheriff then gave the plaintiffs an oral order to pick up the livestock, but they were unable to locate the same in the possession of the defendant, Johnson. Later that same day and after the expiration of the twenty-four hour period, the sheriff took and approved a redelivery bond from the defendant, R. D. Johnson. The plaintiffs then sought to amerce the sheriff for their benefit in the amount of $500.00, the value of the livestock replevined. On hearing the trial court held the redelivery bond was of no force or effect, having been made after the expiration of the statutory time, denied the amercement and directed the sheriff to deliver the livestock to the plaintiffs on the supplying by them of suitable means for transporting the same. The plaintiffs have appealed, contending the sheriff having failed to discharge his duty is liable to them under the amercement statute for the value of the property involved.

The amercement is sought under the provisions of 12 O.S.1941 § 811. This section of the statute is included in the subdivision of the civil procudure laws dealing with executions. The statute specifically provided the officer shall be liable for the amercement if he 'shall refuse or neglect to execute any writ of execution to him directed,' or 'refuse to sell any goods and chattels, lands and tenements, or shall neglect to call an inquest and return a copy thereof forthwith', or 'shall neglect to return any writ of execution', or 'to return a just and perfect...