Cooper v. Mullenax

Lovnsrs, Judge: The Circuit Court of Pocahontas County sustained a demurrer to the bill of complaint in a judgment lien creditors’ suit, and, on its own motion, certified its ruling to this Court. A. E. Cooper recovered two judgments, one against Ona J. Mullenax, Bessie Mullenax, Belva Mullenax, and Olet Mullenax for $105.50 and costs, and one against Ona J. Mullenax, Olet Mullenax and Belva Mullenax for $95.05 and costs. The judgments were rendered May 26, 1942, by a justice of the peace of Pocahontas County, who, on the following day, issued executions on the judgments directed as follows: “To Ward Hudson, Sheriff, or any Constable of Edray District in said County * * The executions were delivered to the Sheriff of Pocahontas County, who made returns thereon reading as follows: “Execution returned no property found”. One return was dated June 5, 1942, the other bears no date. Both were signed “Ward Hudson, Sheriff of Pocahontas Co. W. Va.” After the executions were returned, plaintiff filed his bill of complaint, in which he alleged the rendition of the judgments, the issuance and return of the executions as hereinabove mentioned, and other facts unnecessary to note, exhibiting with the bill certified copies of the executions and returns. Ona Mullenax, Olet Mullenax and Belva Mullenax demurred to the bill of complaint, and assigned as grounds therefor that the execution issued on the judgment for $95.05 and costs was directed to the Sheriff or any Constable, as hereinabove indicated; that no memorandum was made by the justice of the peace showing any reason for so directing the execution; that the justice exceeded his power in directing the same to the sheriff or any constable; and that the execution by reason thereof is void. *258 Defendants, Virgil Mullenax and Noel Mullenax, demurred to the bill of complaint on the ground that the two executions were directed and delivered as hereinabove stated; and that the justice made no memoranda on his docket disclosing that it was “unfit” to deliver the said executions to a constable. The Court sustained the demurrer first mentioned, and, of its own motion, certified the following questions to this Court: (1) Are the executions and returns thereon void because they were directed to the sheriff or any constable; and (2) Whether the executions may be amended by the justice of the peace to show that said executions were intended to be directed solely to the sheriff because it was “unfit” to direct them, or either of them, to a constable; and after said amendments to the executions are made whether the bill of complaint in this suit may be amended to conform thereto? No ruling was made on the demurrer of Virgil Mullenax and Noel Mullenax. The questions certified included both executions, whereas the demurrer on which the trial court ruled challenged only one execution. Nevertheless, the questions as to one execution are determinative of the defects, if any, existing in the other, the papers being identical except as to date. The issuance of an execution and the return thereon showing no property found are jurisdictional prerequisites to the prosecution and determination of a suit to enforce a lien on land. Code, 38-3-9; Lewis v. Fisher, 114 W. Va. 151, 171 S. E. 106. But where no execution has issued within two years of the date of the judgment showing a bona fide effort to exhaust the judgment creditor’s legal remedy, that jurisdictional requirement is satisfied. Code, 38-3-9; Guaranty Co. v. Eary, 116 W. Va. 477, 181 S. E. 817. It is the manifest purpose of the statute above mentioned that judgment creditors shall be required to exhaust the legal remedy afforded them before the land of a judgment debtor may be sold. An execution directed to the proper officer of the county of the judgment’s debtor’s *259 residence and returned “ño property found” effectuates that purpose. An execution directed to a special constable appointed by a justice of the peace and returned “no property found” is void and does not meet the jurisdictional requirement above mentioned. Stutler v. Casey, 113 W. Va. 335, 168 S. E. 371; Mitros v. Morris, 111 W. Va. 347, 161 S. E. 576; Lopinsky v. Realty Co., 111 W. Va. 553, 163 S. E. 1. No officer was appointed by the justice of the peace in the instant case. The executions were directed to the sheriff who, as to the official acts performed by him under the executions, was a public civil officer. Thomas v. Grafton, 34 W. Va. 282, 12 S. E. 478. There is a wide difference in the official status and powers of a sheriff — a constitutional officer — and a special constable appointed by a justice of the peace. The former fis required to give an official bond; no bond is required of the latter. There are other distinctions between the two officers unnecessary to be noted or discussed herein. It suffices to say that the only question presented here relates to the officer to whom a justice of the peace may direct an execution on a judgment rendered by him. A justice has no power or authority other than that expressly conferred by statute. Roberts v. Hickory Camp Coal and Coke Co., 58 W. Va. 276, 52 S. E. 182; Mitros v. Morris, supra. The power of a justice to direct an execution to a sheriff will be found in the following: “When, for any cause, it is unfit for an execution * * * to be directed to a constable it may be directed to the sheriff * * *”. Code, 50-14-12. The foregoing statute expressly confers on a justice of the peace discretionary power to direct an execution to a sheriff when the unfitness of the constable exists from any cause. It is to be supposed that the statutory power conferred upon the justice was exercised in accordance therewith. “Where nothing appears to the contrary a public official is presumed to have performed his duty.” Insurance Company v. Carver, 113 W. Va. 58, 166 S. E. 697. *260 From the record before us we cannot say that the justice of the peace failed to perform his duty or to properly exercise his discretion in directing the executions to the sheriff. The argument is made that the justice of the peace should have made an entry on his docket relative to the unfitness of a constable. Code, 50-16-3, 4, sets forth with particularity the entries required to be made by a justice of the peace in his docket. See paragraph (k), Code, 50-16-4, with reference to executions. There is no statutory provision requiring a justice of the peace to make an entry in his docket showing the fact which renders it unfit to direct an execution to a constable. The alternative direction of the executions to any constable of Edray District would seem to negative the existence of the statutory ground for direction to the sheriff. The direction to the officer is composed of typewritten and printed words. The words “Ward Hudson, Sheriff” and “Edray” are typewritten; the other words of the direction are printed. The specific typewritten direction to the sheriff by name leads us to the belief that the execution was directed to the sheriff and to him alone, and that the alternative direction to any constable resulted from a clerical error. We regard the alternative direction to the constable as surplusage and as having no effect on the validity of the executions or the official acts of the sheriff thereunder. What has been said renders it unnecessary to discuss or answer the second question certified. For the reasons herein stated, we reverse the ruling of the trial court. Reversed.