Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818 Written: June 1818. 
Transcribed by MSGenWeb, Jan 2006

 

Coleman et al. v. Saunders et al.

In proceedings by motion against the sheriff and his sureties, notice must be given to the defendants.

    ERROR from the circuit court of the county of Rankin.
    This was a motion in the circuit court of Rankin county, by defendants in error against the plaintiffs, to recover judgment for the amount of an execution in favor of defendants, which it was alleged was placed in the hands of Willis P. Coleman, as sheriff of Rankin county. The motion was entered to recover the amount of the execution and interest, and also twenty-five per cent. damages, according to the statute.
    The record stated the appearance of the plantiffs below by their attorney, and that on his motion judgment was rendered by the court against the sheriff and his sureties, namng them, for the amount of the execution, with interest and the damages allowed by the statute. There was no notice of the motion, nor any appearance by the plaintiffs in error either in person or by attorney.

    W. Yerger, for plaintiffs in error.
    This motion was made under the act of February, 1828. Laws of Mississippi, 151.
    In summary proceeddngs of this kind, every fact necessary to give the court jurisdiction, must appear of record. 4 Yerger, 161. 1 Marshall, 423. Cooke's Reports, 267. And in cases where the statute requires notice to be given, that fact must appear of record; and also, that the motion was taken up on the day named in the notice. Floyd v. Black, lit. Select Cases, 11. 3 Mar, 142. 6 Yerger, 311, Hardin Rep. 29.
    The remedy by motion against a sheriff and his sureties, can only be deemed constitutional, where the court empannels a jury to try the facts in controversy. In these cases no judgments by default can be taken; all the facts necessary to give the court
jurisdiction must be proven to exist, and must appear of record. 3 Marshall, 172. Smith v. Smith, 1 Howard, 102
    In this case there was no jury; nor does it appear from the record that the shefiff collected the money, that a demand was ever made of it, that notice of the motion was ever given, or that the motion was made on any day specified in any motion, if given. There is therefore manifest error for which this judgment must be reversed.

Per Curiam.
    The statute which authorizes this summary proceeding against the sheriff and his sureties, requires that they shall have notice of it. None was given, and the judgment is therefore manifestly erroneous. Walker's Rep. 254.
    Let the judgment be reversed.

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