Opinion
(June Term, 1848.)
A sheriff may be amerced for not returning process at a term subsequent to that to which the return should have been made.
APPEAL from the Superior Court of Law of SURRY, at Fall Term, 1847, Pearson, J., presiding.
Boyden for plaintiff.
Strange for defendant.
This is a sci. fa. against the defendant, who was the Sheriff of Robeson County, to recover of him the sum of $100 for not returning a writ of capias ad respondendum. The case is as follows: A writ was duly issued from the office of the Clerk of the Superior Court of Surry, returnable, to the Spring Term, 1846, and came to the hands of the defendant, who was then the Sheriff of Robeson County, to whom it was directed, more than twenty days before the return term. The defendant failed to return it according to law, and, at the Fall Term following, a judgment nisi was entered up against him for $100, (241) and this sci. fa. issued. The defendant objected that the court had no power to fine a sheriff at one court for a default at a former one. This objection was overruled by the court, and judgment being rendered for the plaintiff, the defendant appealed.
There is nothing in the objection. The proceedings are instituted under section 61 of the Revised Statutes. It is provided "that any sheriff and coroner who shall fail duly to execute and return all process to him directed shall be subject to a penalty of $100 for each neglect, to be paid to the party aggrieved, by order of the court, upon motion and proof that the process was delivered to him twenty days before the sitting of the court to which it was returnable, unless the sheriff or coroner can show sufficient cause to the court for his failure, at the court next succeeding such order." The act does not required that the judgment for the penalty shall be rendered at the term to which the writ is returnable, nor can any good reason be assigned why it should. The judgment is a conditional one, to be enforced only on the failure of the officer, at the term succeeding, to show a sufficient reason for his delinquency. Being granted on motion without personal service of any notice of the intention to make it, it is final to no purpose, except, perhaps, that of the failure to return, but leaves, by the express provision of the act, to the officer the privilege of showing any "sufficient cause for his failure," provided he applies to be heard at the proper time, to wit, the term succeeding the making of the order for the amercement; and that is the object of the sci. fa. Its language is, "then and there to show cause, if any he has, why the said plaintiff, William Halcombe, shall not (242) have execution thereof, etc." Upon the return of the sci. fa. a full defense is open to the sheriff; he may show that the writ never came to his hands, or that he did not receive it until after the return day, or that by some inevitable accident he was prevented from making his return, or, in the language of the act, any sufficient reason. If the sheriff be actually present in court when the motion to amerce is made, the court would no doubt then hear his excuse, but his defense is not, fortunately for him (in this particular), confined to that time. The act not only gives to the party injured the sum of $100 for each failure, but likewise subjects the delinquent officer to an indictment. With equal propriety it might be argued that the prosecution must be commenced at the return term of the writ.
We see no reason to disturb the judgment.
PER CURIAM. Judgment affirmed.
Cited: Hyatt v. Allison, 48 N.C. 535; Person v. Newsom, 87 N.C. 144.
(243)