Wilkerson v. Mobley

237 S.W. 726, 152 Ark. 124, 1922 Ark. LEXIS 24

• Court: Supreme Court of Arkansas
• Decided: February 20, 1922
• Status: Published

Opinion

Hart, J.

(after stating the facts.) It is well settled in this State that a sheriff should not be made liable under the statute for the non-return of an execution, when the failure to do so has been the result of the instruction or intermeddling of the plaintiff. The reason is that, where the failure of the sheriff to make the return is caused'by the plaintiff himself, he ought not to be permitted to obtain any advantage by it.

The statute in question is highly penal, and a partv invoking it must bring himself within both the letter and spirit of it. Therefore, he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute. Bickham v. Kosminsky, 74 Ark. 413. The proof in this case shows that a few days before the return day of the writ the deputy sheriff who had in his hands the execution told the plaintiff, in the presence of the execution debtor, that he was ready to levy on any property belonging to the defendant that could be shown him, but that something had to be done because the time for the return of the execution would expire in a few days. This was in the early part of December. The plaintiff Wilkerson then agreed with the defendant Brown not to have any execution levied on his property until about the 15th day of February, 1921, at which time Brown thought he could pay off the judgment by the sale of his cotton.

It is true that the plaintiff himself testified that the execution then in the hands of the sheriff was to be returned and another one issued at the expense of the deputy sheriff, or of Brown, but he does not state, however, that it was to be returned within the. sixty days. Indeed, it is inferable from the testimony, read as a whole, that it was not in the contemplation of the parties that the execution should be returned within sixty days from the date of its issuance. It will be noted that the deputy sheriff was complaining that the sixty days would soon be out, and that he must do something with the execution. It was then agreed that the execution should not be levied on the property of Brown, but that Brown would be given until the 15th of February, 1921, before an execution should be levied upon his property. The court might have found that this was tantamount to an agreement by the plaintiff that the deputy sheriff should return the execution then in his hands at his convenience and sue out another if Brown did not make the payment by the 15th of February, 1921, as he had promised.

But it is claimed that the deputy sheriff did not carry out his promise of having another execution issued in the case. That is not the issue in the present case. This is a motion for summary judgment under the statute against the sheriff for failing to return an execution. The court found, as we have just seen, that the deputy sheriff would have returned the execution within the sixty days if the plaintiff had not told him, in effect, to let everything rest until the 15th of February, 1921.

It has been well said that the plaintiff can not first disarm the sheriff and then hold him liable for not returning the writ.

It follows that the judgment must be affirmed.