Cleveland Grain & Grocery Co. v. Hendricks

115 So. 114, 149 Miss. 15, 1927 Miss. LEXIS 110

• Court: Mississippi Supreme Court
• Decided: November 28, 1927
• Docket: No. 26647.
• Status: Published

Opinion

Ethridge., J.,

delivered the opinion of the court.

The Cleveland Grain and Grocery Company sued J. W. Hendricks in the circuit court, and obtained a judgment for three hundred thirty-six dollars and eighty-one cents. A suggestion of indebtedness was filed with the clerk, with an application for a writ of garnishment against the Bolivar County Bank, which writ of garnishment was issued and purported to have been served, the return on the writ being as follows:

“I have this day executed the within writ personally by delivering to the within named defendant, R. W. Ray, cashier of the Bolivar County Bank, a true copy of this writ. This the 12th day of May, 1925. V. W. Thomas, Sheriff, By W. B. Morley, D. S.”

And on the writ and return so taken, no answer having been filed by the bank, a judgment against the bank was rendered for the amount of the judgment against Hendricks, and the term of court adjourned.

In November, 1926, after said judgment, the bank filed its motion to set aside the said judgment, and to be discharged, because, in fact, it had not been served with a garnishment ;by any person whatever, and that said judgment so rendered should be vacated and set aside.

Mr. Bay, the cashier of the bank, testified that he had never been served with copy of the writ by any officer, and that the return, made as above set out, was a false .return. The plaintiff in the judgment sought to prove by W. E. Bryant, another deputy sheriff, that the said Bryant did in fact serve Mr. Bay with the writ of garnishment in' question, but objection -was made on the ground that so to do would be to permit Bryant, who was a deputy sheriff, to contradict the return made on the writ by W. B. Morley, another deputy sheriff.

It appears that Morley was the office deputy of the Bosedale office of the sheriff, and that Bryant was the outdoor deputy who served processes of this kind; that Morley made the return on the writ instead of Bryant, who served the writ.

The court sustained the objection to Mr. Bryant so testifying, on the ground that so to do would be to impeach the return of the sheriff. On cross-examination Mr. Bryant was asked if Mr. Morley served the process upon the cashier, Mr. Bay, which was objected to, on the ground that it would impeach the return, but the court permitted the witness to answer that Mr. Morley did not serve the process.

We think the court was in error in excluding* Mr.-Bryant’s testimony and in not making an issue for the jury to try as to whether the bank had been in fact served with process. The return was not made by Mr. Bryant. The statute in such case requires that the sheriff’s name he signed to the return; also that the name of the deputy who serves it "be signed thereto. Mr. Bryant did not make the return, and further than that, the return showed that the process was actually served, although purporting to he served by Mr. Morley. If the process was in fact served upon the bank through its cashier, it would be a valid service, although the return purported to show that Morley, instead of Bryant, made the service of the process. Of course, it is possible that two deputies may serve the same defendant with process. Mr. Bryant was competent to show that the process was served, and the court should have permitted the testimony to be introduced. On an issue of this kind the court is concerned with the question whether process has in fact been served. Of course, Mr. Morley would not be permitted himself to contradict his return, except by motion, duly made at the proper time, to correct the return, if it had been made by mistake.

The judgment of the court below setting aside the judgment will be reversed, and the cause remanded for a trial of the issue as to whether the writ was in fact served upon the bank.

Reversed and remanded.