Cox v. Ross

Citations

• 56 Miss. 481

Syllabus

<p>1. Motion against Sherih?. Failure to return executions. Venue.</p> <p>Motions against sheriffs for failure to return executions to them directed, under the Code of 1871, sect. 227, are determinable in the court to which the process is returnable, and not in the county of the defaulting officer’s residence.</p> <p>2. Same. Defence. Insolvency of execution-debtor.</p> <p>The absence of actual damage to the plaintiff in execution, because of the insolvency of the execution-debtor, or the like, is no defence against a motion, under the Code of 1871, sect. 227, against the sheriff, for failure to return the execution. Dailey v. The State, ante, p. 475, distinguished. ,</p> <p>3. Sheriff's Bond. Code 1871, sect. 309, construed.</p> <p>The meaning of sect. 309, of the Code of 1871, is that an informal bond shall be valid and binding, — not as a common-law bond, but as a statutory bond, — and entitle parties protected by it to invoke all the remedies pointed out by the law-giver.</p> <p>4. Motion against Sheriff. When 'plaintiff must prove judgment.</p> <p>Where a plaintiff in execution, on a motion under sect. 227 of the Code of 1871, against a sheriff of another county for failure to return an execution, counts on his alleged judgment for the amount thereof, and not on the execution, and the sheriff takes issue on the allegation of the judgment’s existence, the plaintiff must introduce the judgment in evidence to make out his case.</p> <p>5. Same. G-eneral rule.</p> <p>Semble, that, generally, he who moves under the Code of 1871, sect. 227, against a sheriff, should be required to produce the judgment on which the execution issued. Campbell, J., doubted.</p>