Opinion
(September Term, 1892.)
Sheriff's Return — Negligence.
A sheriff who fails to make returns of process before the adjournment of the court to which it is returnable, is liable to the penalty prescribed by statute. This case is governed by Turner v. Page, post, 291.
RULE on the sheriff of FORSYTH to show cause why a judgment nisi should not be made absolute, which was taken at the February Term, 1892, of said court, for failure to return an execution issued from the Superior Court of Rockingham on 30 November, 1891, and mailed to him on 1 December, 1891, returnable to the said February Term.
(247) A. J. Burton and Boyd Johnston for plaintiff.
R. B. Glenn for defendant.
The said February Term of court began on 15 February, 1892, and was a two weeks' term, but all the business of the term having been disposed of, the court adjourned at noon on 20 February, 1892, and the defendant, sheriff of Forsyth, did not return said execution until 22 February, 1892, two days after the said adjournment, and did not deliver the horse and buggy, taken under said execution, to the clerk, until 1 March, 1892. The Court, McIver, J., presiding, upon the hearing of the rule, adjudged that the sheriff was not required to return the execution before the adjournment of the court, but at any time within two weeks allotted by statute for the sitting of the court, and adjudged that said rule be discharged upon said sheriff paying the cost of the same.
To this ruling the plaintiffs excepted and appealed.
The point presented by this appeal has been passed upon at this term in Turner v. Page, 291, post. There the reason of the decision is so clearly laid down by Mr. Justice MacRae that it is unnecessary to do more than refer to that case, and to say that after the aid given us by the able argument of appellee's counsel, we are nevertheless satisfied of the correctness of our former ruling. The sheriff is not compelled to make his return of an execution on the first day of the term, though it is more regular, and for many reasons desirable that he should do so. It is sufficient if he make the return during the term (The Code, sec. 449), unless ruled to make it on an earlier day of the term. Ledbetter v. Arledge, 53 N.C. 475. But the term expires when, the business being dispatched, the judge adjourns court or leaves. Branch v. Walker, 92 N.C. 87; Foley v. Blank, 92 N.C. 476. In the latter case it is said "a pleading placed on the files of the court in the absence of the judge, after he has left for the term, is not filed in contemplation of law." So a return made at such time is not made to the term. The term of the court is held by the judge, and there can be none after he leaves. It was the sheriff's negligence that he did not make his return promptly as he should have done, but held it back under the impression that the term would last full two weeks. It is public policy that officers should be prompt, diligent and careful.
The term having expired before the return was made, the judgment nisi should have been made absolute. The Code, sec. 2079. The case will be remanded, that the judgment shall be so entered.
REVERSED.
Cited: Swain v. Phelps, 125 N.C. 44.
(248)