Union Motor Car Co. v. Cartledge

• Decision Date: 17 September 1923
• Docket Number: 23194
• Citation: 97 So. 801,133 Miss. 318
• Court: Mississippi Supreme Court
• Parties: UNION MOTOR CAR CO. v. CARTLEDGE, Sheriff, et al

97 So. 801

133 Miss. 318

UNION MOTOR CAR CO. v. CARTLEDGE, Sheriff, et al

No. 23194

Supreme Court of Mississippi

September 17, 1923

Division B

Suggestion of Error Overruled Nov. 26, 1923.

APPEAL from circuit court of Coahoma County, HON W. A. ALCORN, JR., Judge.

Proceeding by the Union Motor Car Company against N. A. Cartledge Sheriff, and others, for failure to return an execution issued on a judgment, in which H. H. Farmer appeared and filed motion to set aside the judgment. From a judgment for defendants, plaintiff appeals, and Farmer cross-appeals. Judgment on direct appeal affirmed, and cross-appeal dismissed.

Judgment affirmed. Suggestion of error overruled.

Sillers, Clark & Sillers, for appellant.

We appealed from the order of the court entered on the motion in the case of Union Motor Company v. N. A. Cartledge, Sheriff, and United States Fidelity and Guaranty Company. The motion was made in the case which is styled "Union Motor Car Company v. H. H. Farmer & N. A. Cartledge, Sheriff, etc." This is the first time Farmer's name has appeared as an appellee in this court, he never having appealed from the judgment rendered against him in the circuit court. The law on this matter is so entirely well settled, however, that we are proceeding to submit the case on its merits, as we see it, to the court.

We briefly call the court's attention to the fact that a claim is made that the judgment of the court upon which this execution is founded is void because rendered at an unauthorized time. The records show that this judgment was rendered on October 15, 1921, and under the laws of 1920, chapter 135, this was during a regular term of the circuit court of the Second Judicial District of Coahoma county, Mississippi, and the judgment was rendered at the next succeeding term of court after the verdict of the jury was returned and the matter taken under advisement. We also call the court's attention to the wording of the order taking the case under advisement for judgment to be rendered in vacation, and insist to the court that even if the matter had been rendered at any time in vacation, under the order taking the matter under advisement the court had full authority to enter any order that may be necessary to terminate the matter in controversy between the plaintiff and the defendant at any time in vacation. Even without this order the court had full authority to enter a judgment on the verdict of the jury during the succeeding regular term of the court.

Maynard, Fitzgerald & Venable, for appellees.

"Under the law (chapter 135, Laws of 1920) the next term of the circuit court, after the taking of the motion under advisement, convened on the fourth Monday of September, 1921, and expired by operation of law within three weeks. So it appears that the judgment against the defendant, Farmer, upon which the execution was issued was rendered in vacation, and that a term of court had intervened before the taking of the matter under advisement to be decided in vacation and the rendition of the judgment."

The court will notice that this motion was to be heard on May 31st, which was not done.

Now, what really happened was this: The 14th day of the term of court, as shown by the minutes of the court, Minute Book 7, page 45, was Thursday, October 13, 1921, and on that day court adjourned.

Unless the original judgment of the court which is attached to the affidavit of the clerk is true and correct, we have no idea why the judge should have written in his own handwriting in the judgment that the same was rendered in vacation.

And we further call the court's attention to the fact that in volume 1, page 9, of the record, the writ, introduced over the objection of the defendant, appellee here, shows as follows: "By an order entered by Wm. A. Alcorn, Jr., Circuit Judge, in vacation, on the 15th day of October, 1921."

Now we desire especially to call the court's attention to the fact that this judgment, besides being void for having been entered in vacation after the expiration of the September term of court, is void because the same was not taken up and heard and decided on the 31st day of May as set by the court by its order above mentioned.

As Judge ETHRIDGE remarks in his opinion: "We think that the statutes permitting the judges to take causes under advisement to be decided and judgments rendered in vacation means that period of time elapsing between the term of court at which the order is entered and the beginning of the next term; and if the cause is not decided and judgment rendered during that period, the cause becomes triable at the next regular term of court and should be docketed and disposed of during that term of court."

This cause should be affirmed by the supreme court because of the fact that at the time of the trial of the cause the court had under consideration a motion made by H. H. Farmer to vacate the judgment and quash the execution.

Argued orally by Gerald Fitzgerald for appellee.

OPINION

ETHRIDGE, J.

At the May term, 1922, of the circuit court of the Second district of Coahoma county the appellant, the Union Motor Car Company, filed a motion against the sheriff of the county and the surety on his bond, the United States Fidelity & Guaranty Company, for failure to return an execution issued upon a judgment for three thousand and seventy-three dollars and twelve cents, with six per cent. interest from October 15, 1921, and all costs accrued in said suit, together with five per cent. on the full amount thereof as specified statutory damages, alleging that Cartledge was the duly elected, qualified, and acting sheriff of said county, and on the 15th day of October, 1921, in a certain action pending in the circuit court of the district and county in which the Union Motor Car Company was plaintiff and H. H. Farmer defendant, being cause No. 2733 of the docket of said court, judgment was duly given in said court and entered on the minutes thereof for the amount of three thousand and seventy-three dollars and twelve cents with six per cent. interest until paid, and that about the 22d day of February, 1922, an execution was issued on said judgment at the instance of the Union Motor Car Company, and directed and delivered to the sheriff, the defendant, a copy of which execution is made an exhibit to the motion, as is also a copy of the judgment, and it was alleged that said Cartledge wholly failed to return the said execution on the return day thereof, as was his duty to do, and demanded judgment for the amount above mentioned, with the said penalty referred to.

The sheriff filed a plea in response to said motion, in which he alleged that said execution was and is void upon its face, and that it was and is a total departure from any judgment at any time rendered in this court, or that it was or is supported by any such judgment, and denies that any such judgment in said cause therein was ever rendered as stated. He avers, also, that said alleged execution should be quashed as far as he is concerned because the same was and is a total departure from the alleged judgment stated in the motion, and because the same was not and is not authorized by said alleged judgment. He further alleged: That in said cause, about the 6th day of April, 1920, he received from the clerk a writ commanding him to seize certain property which the plaintiff pointed out to him as being the property intended to be taken under the said writ. That he forthwith executed said process and returned the same to this court indorsed:

"I have this day executed the within writ personally by seizing and taking into my possession one certain automobile, to wit, one Mercer automobile, sport model, No. 4296, and leaving the same with the Imperial Garage for safe-keeping."

That on the 7th day of April, 1920, he further executed the said writ by the following indorsement:

"I have further executed the within writ by delivering to the within named a true copy of this writ."

Both of said indorsements being entered on the writ and returned to the clerk of the court. That subsequent to that time the defendant H. H. Farmer desired to replevy said property by giving bond therefor as provided by the said law, and that said Farmer employed an attorney to represent him in all respects in said matter, and that said attorney prepared an affidavit and writ of replevin in which N. A. Cartledge and the Imperial Garage were alleged to unlawfully detain property from the said Farmer, and that they tendered bond with sureties which was approved by the sheriff, and the property seized was thereupon returned to the possession of Farmer. That this bond was returned by the sheriff to the circuit court, and that he notified the plaintiff of such facts, that said defendant had replevied the said property by giving the said bond and of the action of the sheriff in the premises. That the sheriff was not learned in the law, and had not advice of counsel at the time, and, not apprehending that said advice was necessary, and being in no wise advised he was not fully protected by his said action, the sheriff took no further action in and about the premises, and was never advised of any judgment therein rendered which did not embody and did not adjudge that the sheriff was no longer responsible for the custody of the said property. That the said bond was in fact a good and solvent bond, and the sureties thereon worth the full penalty thereof, and that the full penalty thereof can now be realized through the process of this court.

It further alleged that in the trial of the case between the Union Motor Car Company and Farmer the plaintiff was advised of the release of said property, and knew well that the sheriff had released said automobile by virtue of said...