Lewis v. Pearson Co.

Wood, J., (after stating the facts). This suit was brought under section 3286 of Kirby’s Digest, which, so far as is necessary for the purpose of this opinion to set out, is as follows: “If any officer to whom any execution shall be delivered * * * shall not return any such execution on or before the return day therein specified, * * * each officer shall ibe liable and bound to pay the whole amount of money in such execution specified, or thereon indorsed and directed to be levied. ’ ’ This section was a part of the Revised Statutes, section 62, which has been continued in force under section 1 of the schedule of the Constitution, which provides that “all laws now in force which are not in conflict or inconsistent with this Constitution shall continue in force until amended or repealed by the General Assembly.” Our Constitution provides for the establishment of courts of common pleas by the General Assembly. Art. 7, § 32. While the language of the statute is broad, it is sufficiently specific to 'Cover executions issuing from .any court created by the Constitution or by its authority. The language of the statute is “if ’any officer to whom any execution shall be delivered * * * shall not return any such execution,” etc. “The statute in question is highly penal, and the party invoking it must bring himself within both the letter and spirit of it.” Craig v. Smith, 74 Ark. 364. See also State v. International Harvester Co., 79 Ark. 517. ‘ ‘ Its terms should not ibe extended by construction to cases not within its plain meaning.” Mayfield Woolen Mills v. Lewis, 89 Arik. 488. • The purpose of the statute, as was said in Williams v. State, 65 Ark. 159, was to reach palpaible derelictions on the part of the officer, but when an officer fails to make the return within the time required by t'he statute, such is a palpable dereliction, and there is no escape from the plain mandate of the law, and it must be obeyed when the party invoking it brings himself within both its letter and spirit, as the appellee in this case has done. The judgment of the circuit court is therefore correct, and is affirmed.