Cleveland Grain & Grocery Co. v. Hendricks

Counsel

Somerville Somerville, for appellant. The rendition of final judgment discharging the garnishee, the Bolivar County Bank, appears to be in direct conflict with the provision of the Code on this subject. Section 3157, Hemingway's Code 1927. Officer may explain service. We think the learned court below misconstrued section 3156, Hemingway's Code 1927, and if so we ask that the case be reversed in order that it may be tried anew. The issue was whether or not the process had been served on Mr. Rea. The statute, as we read it, is merely a statement of the Rule of Law that an officer cannot impeach his own certificate. It might be said that the statute did prevent Mr. Morley from testifying that he did not personally deliver a copy of the writ, but signed the return upon the strength of the service by another deputy. But the decision of the learned court below has construed this statute to mean just exactly what the legislature did not intend. In other words, the learned court below refused to permit the appellant to show that the writ was actually served by Mr. Bryant merely because Mr. Bryant was a deputy sheriff. The statute, we submit, was never intended to prohibit officers from testifying that writs were served. We do not cite any cases just here but will cite them later on in this brief and in connection with the decisions about the return on the writ. The return was sufficient. This appeal presents this question, namely, it is proper for one deputy sheriff to serve a writ and another deputy to sign the return where both deputies are acting for and on behalf of the sheriff. In other words granting that Mr. Bryant served the copy of the writ on Mr. Rea and that Mr. Morley signed the return, is that sufficient for the court to gain jurisdiction and render a judgment by default where each of the deputies were acting in the name of the sheriff, the principal. In other words everything connected with the record was admittedly correct except that one deputy sheriff served the writ and another signed the return, but all of it was done in the name of the sheriff. In other words, the wrong signature was on the return in so far as the deputy sheriff was concerned. See 21 R.C.L., pp. 1316-17, sec. 64. The opposing Counsel lay great stress on the decisions holding that the return of a deputy sheriff in his name is void. These decisions were cited to the learned court below in the trial of this case. We submit that these decisions have nothing whatever to do with the present case. If either Mr. Morley or Mr. Bryant had made the return and simply signed it "W.B. Morley, Deputy Sheriff," or "W.E. Bryant, Deputy Sheriff," then the decisions heretofore relied upon by the appellee would be applicable. We believe however, that the rule in this case is that as laid down by the Kansas Court in Goddard v. Harbour, 56 Kan. 744 , 44 P. 1055, 54 A.S.R. 608, which see. See, also Gibbens v. Pickett, 31 Fla. 147 , 12 So. 17. This court held in Dorsey v. Pierce, 5 How. 173, that the return of the sheriff could not be amended after final judgment and adjournment of the term of court. It appears that this rule has been somewhat changed by Lupkin v. Russell, 67 So. 185, where this court held that pending an appeal the return may be amended. In this case no appeal was taken and as we see it there was no authority to amend the return or change the record. The only question in the case as we see it is whether or not the circuit court had jurisdiction by virtue of a deputy sheriff serving the writ on the cashier of the garnishee bank. In this instance the appellant was not permitted to introduce proof to show that the writ was actually served. If a defendant is to be permitted at any time to testify that he was not served and the officer cannot testify that the writ was served then we are indeed in a bad way. See Duncan v. Gerdine, 59 Miss. 550 , in this connection. Sillers Pearson and Green, Green Potter, for appellee. If Bryant proposed to testify that he and not Morley served the writ, then such evidence would be incompetent, as contradicting the return in writing required to be made by the statute; to have rendered such evidence competent it would have been necessary to have amended the return on the writ to show that it was served by Bryant, and not by Morley, but no amendment was made, and it could not have been made because the term had expired at which the judgment was rendered, and appellant's brief admits that no amendment could be made, as held in Dorsey v. Pierce, 5 How. 173; Lupkin v. Russell, 67 So. 185; Hughes v. Lopice, 5 S. M. 451; Sec. 3156, Hemingway's Code 1927. A motion to quash the writ is the proper practice. Meyer v. Whitehead, 62 Miss. 387 . Section 3157, Hemingway's Code 1927, has no application to a writ of garnishment; it is by express terms confined to "the summons or citation, or the service thereof." A summons or citation is a very different writ from a writ of garnishment. Williams v. Gage, 49 Miss. 777 ; Sec. 2059, Hemingway's Code 1927; 28 C.J., p. 363; Goddard v. Harbour, 56 Kan. 744 and Gibbens v. Pickett, 31 Fla. 147 , are not applicable. It is to be noted that counsel does not cite, nor undertake to meet sections 3138, 3290 and 3286, Hemingway's Code 1927, which are the controlling statutes in this case. Stone v. Montgomery, 35 Miss. 83 , cited, supports the proposition we contend for; so does Dunkin v. Gerdine, 59 Miss. 557 . See, also, Dogan v. Barnes, 76 Miss. 566 ; Betts v. Baxter, 58 Miss. 329 ; Heirman v. Stricklin, 60 Miss. 234 , and Moore v. Hoskins, 66 Miss. 496 . Meyer v. Whitehead, 62 Miss. 387 , and Kelley v. Harrison, 69 Miss. 856 , were not cases of garnishment, but ordinary suits pending on defective service of summons, and hence the rule as to garnishments did not apply. For a full general review of the status of sheriff's returns, see 21 R.C.L., p. 1315.