Jett v. Shinn

Smith, J. The- complaint alleged that, by the consideration of the Pope circuit court, the plaintiff,. Shinn, had recovered judgment against one Battenfield fo.r $1306.34 debt, $108 damages, and costs of suit; -that o-n the 29th of November, 1884, he caused the clerk of said court to issue an execution upon said judgment, directed to the sheriff of Johnson county, and returnable within - sixty days; that this writ came to the hands of said sheriff oh the 2d of December, 1884, and was by him accepted, and levied on the 4th day of the same month on lands of the defendant; but no sale, was had thereunder, nor was the execution returned within the time limited by law. Wherefore judgment was demanded .against the sheriff and the sureties on his official bond, for the amount of the plaintiff’s judgment against Battenfield. The answer set up two defenses : 1. That the,execution was not signed and tested by-the clerk of the court in which the judgment was rendered, but bore.the signature of the plaintiff in the execution. 2. Thatthe-sheriff was misled, by information derived from the plaintiff’s.attorney,-into the belief that it was necessary to advertise the sale for sixty days, and accordingly advertised the sale..to. take..,pl-cipe on the' 4th day of February, 1885, but afterwards discovering that he had no pow-er to sell after the return, day-of ¿hg jwrit., had returned the same partially executed.. To this answer a general demurrer was .sustained; and the defendants declining to plead further, final judgment went against them. Sec. 3061 of Mansfield’s Digest makes the officer, to whom an execution is delivered, liable for the whole amount in such execution specified, for failure to return the writ before the return day expires. This is a very rigid and peremptory statute, as may be seen by reference to its' language and to the cases of Heer v. Atkinson, 40 Ark., 380, and Atkinson v. Heer, 44 Id., 174. ■ Whether the sheriff was bound to execute and return the process seems to depend on the question whether it was void or only erroneous. “ It is no defense that’ the writ was irregular, where, the irregularity is not such as to render it void.” “ Whenever the writ is amendable, or is such that, by the failure of the proper party to move for its vacation, it may be lawfully executed, and may by a sale thereunder transfer the title of the defendant, the sheriff is bound to execute it, and to take no notice of the irregularities, and is as liable to the plaintiff for any neglect or misconduct in its execution as though it were in all respects regular.” Freeman on Executions, secs 103, 368; Daily v. State, 56 Miss., 475; Cable v. Cooper, 15 Johns., 152. In Powers v. Swigart, 8 Ark., 365, it is said, arguendo, that the clerk’s signature is essential to the validity of the writ. But this dictum is at war with Whiting & Slack v. Beebe, 12 Ark., 421, and subsequent decisions. , And the sounder doctrine is, that his omission to sign a writ issued by him, or the affixing by inadvertance the.name.of. another.-persondnstead' of his own, as in this case; is a mere clerical misprision — matter of form, and not substance' — and that the defect-will be treated as amended whenever it is, collaterally assailed. Mitchell v. Conley, 13 Ark., 315; Thompson v. Bremage, 14 Id., 59; Lawson v. Jordan, 19 Id., 306; Atkinson v. Gatcher, 23 Id., 101; Blanks v. Rector, 24 Id., 496; Bridwell v. Mooney, 25 Id., 524; Galbreath v. Mitchell, 32 Id., 278; Youngblood v. Cunningham, 38 Id., 571; Kahn v. Kuhn, 44 Id., 404; Wibright v. Wise, 4 Blackf. (Ind.), 137; Burton v. Pettibone, 5 Yerger, 443; McCormick v. Mason, 1 Serg. & R., 97; People v. Dunning, 1 Wendell, 17; Jones v. Cook, 1 Cowen, 300. The sheriff is not excused from returning an execution by any conduct of the plaintiff, which falls short of showing that the non-return resulted from the act or instructions of the plaintiff, or was ratified or waived by him. If the sheriff was misled by advice of the plaintiff’s attorney, so that he postponed the date of sale beyond the life time of the writ, this may furnish a satisfactory reason for not selling, and for not having the money to render to the plaintiff. But it is no excuse for not returning .the process-upon its return day. Norris v. State, 22 Ark., 524. Judgment affirmed.