Watson v. Boyett

• Decision Date: 05 November 1928
• Docket Number: 27345
• Citation: 118 So. 629,151 Miss. 726
• Court: Mississippi Supreme Court
• Parties: WATSON v. BOYETT et al. [*]

118 So. 629

151 Miss. 726

WATSON v. BOYETT et al. ^[*]

No. 27345

Supreme Court of Mississippi

November 5, 1928

Division B

1. SHERIFF AND CONSTABLES. Formal pleadings are not required on motion for statutory damages for failure of sheriff to return execution (Hemingway's Code 1927, section 8293).

A motion under Code 1906, section 4670 (Hemingway's Code 1927, section 3293), to recover damages for failure of sheriff to return execution according to its command, is a summary proceeding not requiring formal pleadings.

2. SHERIFFS AND CONSTABLES. Law authorizing damages for sheriff's failure to return execution is highly penal (Hemingway's Code 1927, section 3293).

Code 1906, section 4670 (Hemingway's Code 1927, section 3293) providing for damages for failure of sheriff to return an execution according to its command, is highly penal, and officers will be held exempt from its operation under very slight circumstances.

3. SHERIFFS AND CONSTABLES. Admission by husband of judgment creditor before time for return of execution that nothing could be made thereon relieved sheriff from statutory penalty (Hemingway's Code 1927, section 3293).

Where after issuance of execution and before time for its return husband of judgment creditor in a conversation with sheriff admitted that nothing could be made out of defendant in execution, such admission, in connection with balance of conversation, held sufficient to relieve sheriff from penalty under Code 1906, section 4670 (Hemingway's Code 1927 section 3293), providing for damages for failure to return execution according to its command, in that it was calculated to make sheriff less diligent in performing duties required of him by statute.

4. SHERIFFS AND CONSTABLES. Evidence that execution defendant had property subject to levy held properly excluded on motion for damages for sheriffs failure to return execution (Hemingway's Code 1927, section 3293).

On motion under Code 1906, section 4670 (Hemingway's Code 1927, section 3293), to recover statutory damages for failure of sheriff to return execution according to its command evidence tending to show that defendant in execution had property on which execution could have been levied and judgment in whole or in part satisfied was properly excluded.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

Action by A. V. Watson against J. R. Boyett and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Frank E. Everitt and J. M. Forman, for appellant.

Cited: Izod v. Addison, 5 Howard 432; Green v. Taylor 111 Miss. 232, 71 So. 375.

Shands, Elmore & Causey and B. B. Allen, for appellee, J. R. Boyett.

We submit several grounds on which the judgment of the lower court ought fairly to be sustained: It cannot be said that the lower court was manifestly wrong in holding that the conversation of plaintiff's husband and agent, with the sheriff, threw the sheriff off his guard and directly or indirectly contributed to the omission of duty complained of.

2. It is not shown that the judgment was not satisfied.

3. The execution was not styled as was required by law and was void.

4. The execution did not comply with the law in regard to costs and was void on that account. The statute is severely penal. See Simms v. Quinn, 58 Miss. 221, 225; Skinner v. Wilson, 61 Miss. 90, 95; Cow v. Ross, 56 Miss. 481, 487; Stein v. Scanlan, 127 P. 483, 484; Section 620, Hemingway's Code of 1927; Fisher V. Franklin, 16 P. 341, 342, 23 C. 791, 25 Am. & Eng. Ency. Law 690; Section 169 of the state constitution; McLendon v. State, 22 S.W. 202; State v. Morgan, 79 Miss. 659; Clingan v. State, 100 So. 185; Koch v. Bridges, 45 Miss. 247; Forbes v. Darling, 54 N.W. 385; Lemons v. State, 6 Am. Rep. 293; Beach v. O'Riley et al., 14 W.Va. 55; Little v. Little, 32 Am. Dec. 317; Manville v. Battle Mounting Co., 17 F. 126; Fisher v. Franklin (Kan.), 66 P. 341; Maxwell v. Pounds (Ale.), 23 So. 730; Marks v. Woods (Ala.), 31 So. 978; Gleason v. Itten (Kan.), 34 P. 892; Tonkel v. Williams, 112 So. 386, 370.

Wells, Stevens & Jones, for appellee, Mississippi Fire Ins. Co.

Cited: 21 R. C. L., par. 2; McAdoo v. State, 253 P. 307; Yeager v. Groves, 78 Ky. 278; Little v. Little, 5 Mo. 227, 32 Am. Dec. 317; Wallahan v. Ingersoll (Ill.), 7 N.E. 519; McLendon v. State (Tenn.), 21 L. R. A. (N. S.) 738; State v. Morgan, 79 Miss. 659; Miller v. State, 81 Miss. 162; Starling v. State, 90 Miss. 255; Holt v. Sather, 264 P. 108; Estill v. Bailey, 1 Ark. (1 Pike), 131; Bank of Hickory v. May, 119 Miss. 239.

OPINION

ANDERSON, J.

Appellant, as plaintiff in an execution, filed a motion in the circuit court of Sunflower county against appellee J. R. Boyett, sheriff of said county, and the other appellees, sureties on his official bond, under section 4670, Code 1906 (Hemingway's 1927 Code, section 3293), to recover the statutory damages provided by that statute for the failure of appellee J. S. Boyett, as such sheriff, to return an execution, according to its command, issued on a judgment in favor of appellant against one C. G. Boyett. There was a trial, and judgment rendered in favor of the appellees. From that judgment, appellant prosecutes this appeal.

On March 21, 1927, appellant recovered a judgment in the circuit court of Sunflower county against C. G. Boyett in the sum of four thousand, seventy dollars and costs. On the 18th day of April, 1927, execution was issued on the judgment and placed in the hands of appellee J. R. Boyett, as sheriff, returnable to the September, 1927, term of the circuit court of Sunflower county, which convened on the 12th day of September of that year. The execution was not returned until December 25, 1927, more than two months after its return date. On November 21, 1927, five days before the execution was returned, appellant filed the motion in this case against appellee J. R. Boyett, as sheriff, and the other appellees, sureties on his official bond, to recover the amount of the execution and the costs, with interest thereon, with five per cent. damages on the amount of the judgment, alleging as a ground therefor the breach of his official bond by appellee J. R. Boyett, as such sheriff, in failing to return the execution according to its command.

The statute under which the appellant's motion was made is in the following language:

"If any sheriff, coroner, or other officer, shall fail to return any execution to him directed, on the return-day thereof, the plaintiff in execution shall be entitled to recover judgment against the sheriff, coroner, or other officer and his sureties, for the amount of the execution and all costs, with lawful interest thereon until the same shall be paid, with five per centum on the full amount of the judgment for damages, to be recovered by motion before the court to which the execution is returnable, on five days' notice first given thereof; but after the sheriff, coroner, or other officer or his sureties shall have paid the amount of money and damages recovered, then the original judgment and execution shall be vested in the officer or his sureties paying the recovery and damages, for his or their benefit; and execution may issue on the original judgment, in the name of the plaintiff, for the use and benefit and at the cost and charges of the officer or his sureties in whom the judgment may be so vested. Nothing herein contained shall affect any other remedy against officers for failing to return executions, and the remedy given by this section shall apply in favor of county treasurers, clerks, and other officers and witnesses, for the recovery of all jury taxes, fees, and costs, with interest and damages thereon, in the same manner as to plaintiffs in execution. In any proceeding against a sheriff or other officer for failing to return any process, proof that the process was put in the post office, duly addressed to him, and that the postage was paid thereon, shall be prima-facie evidence of the receipt thereof by the officer."

One ground of appellee's defense to the motion was that appellant was not entitled to recover the penalty provided by the statute because of a conversation which took place a short time before the return day of the execution between J. S. Watson, husband and agent of the appellant, and appellee J. R. Boyett, as sheriff, having in his hands the execution in question. With reference to what occurred between J. S. Watson and appellee J. R. Boyett, as sheriff, the testimony of the latter was undisputed. His testimony as to that conversation was as follows:

"Q. Who is Mr. J. S. Watson? A. Sam Watson, former sheriff of Sunflower county. Q. What is his relation to Mrs. A. V Watson? A. Husband. Q. State whether or not he is the general agent of Mrs. A. V. Watson. MR. EVERITT: We object to that. COURT: Overruled. Exception by plaintiff. A. I don't know, he attends to her business. Q. State whether you had any conversation with Mr. J. S. Watson with reference to this execution. A. I did. Q. Where? A. In my private office on the east side of the building, just east of the vault. JUDGE EVERITT: We object to all this testimony. COURT: Ruling reserved. Q. That was the sheriff's office here in the court house? A. Yes, sir. Q. What was that conversation? A. Mr. Watson told me that he was needing money pretty bad, that he was in bad health and had stayed away for his health and if I would settle with him for this amount, I could get my money from my brother and he would settle fifty cents on the dollar, and I told him I couldn't do it at that time and he said 'What will you make a proposition of' and I said 'Not any at all. I have none to make.' Q. He said he needed the money? A. Yes, sir. That he was on a heavy expense and had...