W.T. Rawleigh Co., Inc. v. Causey

*838 Roberds, J., delivered the opinion of the court. Appellant, by motion made under Section 3317, Code of 1930, asked the circuit court to render in its favor a judgment against appellees, sheriff and the sureties on his official bond, for the amount of an execution and costs, interest and damages, for failure of the sheriff to return the execution by the return date thereof. When appellant rested its case, appellees moved the court to dismiss appellant’s motion on the ground that the proof which appellant had offered did not show that the execution had been actually delivered to the sheriff before the return date- of such execution. The court sustained appellees’ motion and rendered judgment accordingly. The correctness of this ruling is the only question presented on this appeal. It was necessary that movant show prima facie a delivery in fact of the execution to the sheriff before its return date. Rawleigh Company, Inc., v. Hester, 190 Miss. 329, 200 So. 250. Does its proof do that? Here is the evidence on that question: The judgment was rendered February 17, 1942; the execution is dated September 17, 1942, returnable by its terms the third Monday of October, 1942, which was the 19th of October. The circuit clerk, who issued the execution, testified: “A. Well, now, it shows it was issued the 17th day of September. I can’t tell you on what day I turned it over to him, but as a rule, when I issued an execution I carry it in and give it to the sheriff at that time. . . . “Q. Mr. Gordon give the best approximate date you can that you turned it over to him according to your best recollection. “By Mr. Anderson: We object to that. “By the Court: Do you know Mr. Gordon? “A. No sir, my customary rule is to take it on over to the sheriff’s office at the time I issue it. I wouldn’t swear that I did that though. It was- a few days after I *839 issued it but I don’t remember the exact date but it does show the day I issued it. ‘ ‘ Q. Did Mr. Causey, the sheriff, ever come back after you delivered that execution to him and tell you that it was too late for a return and ask you to issue another one? A. No, sir.” The sheriff made his return on the execution, stating that he found no property subject to seizure, on December 26, 1942. W e think a fair, reasonable inference from this testimony makes out a prima facie case that the execution was actually delivered to the sheriff before its return date, October 19th; especially when supported, as it is here, by the presumption that the clerk did his duty, and so delivered the execution to the sheriff. If it be said that the foregoing presumption is off-set by the further presumption that the sheriff is presumed to have done his duty and served the execution before its return date had he received it prior thereto, the answer is that the return of the sheriff on the execution recites, not that he had received it too late for service, but that he had ‘ ‘ executed the within writ personally by making a diligent effort to execute this execution and have failed to find any property to levy upon.” The execution was a dead instrument after its return date. It had no life for purpose of service after that date. Any effort to seize property thereunder after such date was without any authority whatever. It would have been a foolish act for the sheriff, after the return date of the execution, to have gone out armed with it to seize and take into his possession property of others by virtue of its authority. We cannot presume the sheriff did an absurd act; therefore, his return that he had served the writ by mailing diligent effort to find property and failed to do so necessarily means he did that before its return date, which itself is proof that he had it in his possession before such date. Reversed and remanded.