Riddle v. Bishop, Case Number: 28181
| Citation | 79 P.2d 801,1938 OK 306,183 Okla. 55 |
| Decision Date | 03 May 1938 |
| Docket Number | Case Number: 28181 |
| Parties | RIDDLE v. BISHOP, Sheriff |
| Court | Supreme Court of Oklahoma |
¶0 1.SHERIFFS AND CONSTABLES--Liability to Amercement--Penal Statutes Strictly Construed.
Statutes for providing for the 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 spirit of the law.
2.APPEAL AND ERROR--Sufficiency of Evidence to Sustain Judgment on Motion to Amerce Sheriff.
On a motion to amerce a sheriff under section 469, O. S. 1931, tried to the court without a jury, the judgment of the trial court will not be disturbed on appeal if there is any competent evidence reasonably tending to support it.
3.SHERIFFS AND CONSTABLES--Right of Sheriff to Demand Indemnity Bond Before Making Levy of Execution.
The sheriff has the right, in good faith, to rely on information furnished him by the judgment debtor that the title of the property sought to be levied on is claimed by other parties, so as to justify the demand by the sheriff of the plaintiff for an indemnity bond before levy thereon. pursuant to section 446, O. S. 1931.
4.SAME--Sheriff not Liable in Amercement for Failure to Make Levy Where Plaintiff Fails to Furnish Indemnity Bond.
Where the sheriff, after the receipt of execution, demands an indemnity bond of plaintiff before levy thereof, on the ground that title to the property sought to be levied on is claimed by persons other than the defendant, and the plaintiff refuses or fails to furnish same, the sheriff is not liable in amercement for failure to make the levy.
5.SAME--Amercement Proceeding Against Sheriff Waiver of Failure to Plead Certain Defense by Failure to Object to Evidence.
Where a sheriff, In an amercement proceeding, files a response setting up one defense, and at the trial evidence is introduced by him, without objection, establishing another defense, the movant will be held to have waived the right, if any, to assert that. the sheriff abandoned the defense not pleaded.
6.SAME--EVIDENCE--Parol Evidence Admissible to Show Execution Returned on Day Other Than Shown by Filing Date of Court Clerk.
In a proceeding to amerce a sheriff for failure to return in execution within the time, allowed by law, parol evidence is admissible to show that the indorsement of the court clerk bowing date of filing was erroneous, and that the execution was returned on some other day, the filing mark by the clerk being only prima facie evidence of when it was lodged in his custody.
Appeal from District Court, Cherokee County; E. A. Summers, Judge.
Amercement proceedings by Irene G. Riddle against Grover C. Bishop, Sheriff. From judgment for sheriff, the movant appeals. Affirmed.
Hulsey & Hulsey and Philas S. Jones, for plaintiff in error.
Bruce L. Keenan, for defendant in error.
¶1 This is a proceeding by a judgment creditor to amerce a sheriff pursuant to the provisions of section 469, O. S. 1931. Trial was had to the court without a jury and judgment was rendered for the sheriff, and plaintiff appeals.
¶2 Plaintiff sought recovery from the sheriff for his failure to levy an execution issued on February 24, 1936, which writ the sheriff bad returned on April 15, 1936, and upon which he had indorsed the following: "After checking execution, found it was incorrect and returned same without serving for correction." This was occasioned by the fact that plaintiffs. judgment was for $2,000, upon which a balance was due of $968.78, and the execution directed a levy against the judgment debtors in the sum of $1,233.50.
¶3 Plaintiff further based his motion for amercement on the sheriff's failure to levy an alias execution Issued on May 11, 1936, which was returned by the sheriff with the indorsement "Nothing Found," and which was shown to have been filed on July 11, 1936, by the court clerk, which was after the 60 days allowed by law.
¶4 The sheriff's defenses to the amercement based on his failure to levy the writ of execution of February 24, 1936, are (1) that the execution called for the collection of an amount greater than the balance due on the judgment against the judgment debtors; and (2) that plaintiff had not complied with the sheriff's request to furnish an indemnity bond. This latter defense is also relied on with respect to the alias execution. Respondent also introduced parol testimony to prove that the alias execution was returned on July 10, 1936, which would be within the time allowed by law.
¶5 1. The first proposition to be considered is, Did the sheriff have the right to demand an indemnity bond, and does plaintiff's failure to furnish same constitute a defense to amercement? Statutes providing for the amercement of sheriffs are penal in their nature, are strictly construed, and are 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 spirit of the law. Stein v. Scanlan (1912) 34 Okla. 801, 127 P. 483; First State Bank of Lovell v. Graybeal (1934) 169 Okla. 543, 37 P.2d 912.
¶6 The sheriff demanded the indemnity bond of plaintiff because there were two mortgages against the machinery and a truck belonging to the judgment debtors and because the judgment debtors told him that they were not the owners of the property in question. The testimony was conflicting as to whether the bond was to be given before or after the levy. The trial court evidently believed that it was to be given before the levy, since it found the issues in favor of the respondent. The proceedings on a. motion to amerce are in the nature of a civil action (Fenton v. White [1896] 4 Okla. 472, 47 P. 472), and since they are based on no equitable grounds (Stein v. Scanlan. supra), the rule applicable in a case tried to the court, where a jury has been waived, is the one applicable here. In such cases, where there is any competent evidence reasonably tending to support the judgment of the trial court, the same will not be disturbed on appeal. Smart v. Billings (1934) 169 Okla. 26, 35 P.2d 923. Indeed, plaintiff asserts this to be the rule, but argues that there is an entire lack of evidence. In this she is in error.
¶7...
To continue reading
Request your trial