{ "id": 8560036, "name": "BROGDEN PRODUCE COMPANY v. ALLMOND STANLEY", "name_abbreviation": "Brogden Produce Co. v. Stanley", "decision_date": "1966-06-16", "docket_number": "", "first_page": "608", "last_page": "613", "citations": [ { "type": "official", "cite": "267 N.C. 608" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "31 S.E. 705", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "123 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659346 ], "opinion_index": 0, "case_paths": [ "/nc/123/0384-01" ] }, { "cite": "44 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622650 ], "opinion_index": 0, "case_paths": [ "/nc/228/0035-01" ] }, { "cite": "34 S.E. 110", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "125 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272826 ], "opinion_index": 0, "case_paths": [ "/nc/125/0043-01" ] }, { "cite": "42 S.E. 608", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "609" } ], "opinion_index": 0 }, { "cite": "131 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660285 ], "opinion_index": 0, "case_paths": [ "/nc/131/0245-01" ] }, { "cite": "33 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274677 ], "opinion_index": 0, "case_paths": [ "/nc/33/0217-01" ] }, { "cite": "124 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573264 ], "opinion_index": 0, "case_paths": [ "/nc/256/0462-01" ] }, { "cite": "29 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685735 ], "opinion_index": 0, "case_paths": [ "/nc/29/0109-01" ] }, { "cite": "84 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692879 ], "opinion_index": 0, "case_paths": [ "/nc/84/0326-01" ] }, { "cite": "80 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688061 ], "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/80/0172-01" ] }, { "cite": "49 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682987 ], "opinion_index": 0, "case_paths": [ "/nc/49/0470-01" ] }, { "cite": "16 S.E. 174", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "111 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651162 ], "opinion_index": 0, "case_paths": [ "/nc/111/0291-01" ] }, { "cite": "65 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955472 ], "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/65/0484-01" ] }, { "cite": "63 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278656 ], "opinion_index": 0, "case_paths": [ "/nc/63/0601-01" ] }, { "cite": "12 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "108 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650857 ], "opinion_index": 0, "case_paths": [ "/nc/108/0364-01" ] } ], "analysis": { "cardinality": 617, "char_count": 12443, "ocr_confidence": 0.547, "pagerank": { "raw": 8.854683123585791e-08, "percentile": 0.4987192303489508 }, "sha256": "afcd9b21f3f0e20cb3689d9bce6422fa128c75052288f7a45449921f820a89bb", "simhash": "1:7ab00de4a6dc7813", "word_count": 2138 }, "last_updated": "2023-07-14T22:57:43.953535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "BROGDEN PRODUCE COMPANY v. ALLMOND STANLEY." ], "opinions": [ { "text": "Sharp, J.\nThe law requires that executions \u201cshall be returnable to the court from which they were issued not more than 90 days from the date of issue.\u201d G.S. 1-310. The term return implies that the process is taken back, with such endorsements as the law requires, to the place from which it originated. Watson v. Mitchell, 108 N.C. 364, 12 S.E. 836. The execution with which we are concerned was issued on August 5, 1965, and it was made returnable within 60 days, that is, on or before October 4, 1965. Sheriff Oliver stipulates that he did not return the execution \u201cuntil sometime after the 4th day of October.\u201d Actually, he returned it on January 6, 1966 \u2014154 days after its issuance, and not until after judgment nisi had been entered against him in this amercement proceeding.\nG.S. 162-14 (our codification of Laws of 1777, ch. 118 \u00a7 5 (Potter\u2019s Rev.); Rev. Code, ch. 105 \u00a7 17; Code, \u00a7 2079), provides in pertinent part that every sheriff who' fails to execute and make due return of all process legally issued and delivered to him shall forfeit $100.00 to the party aggrieved \u201cunless the sheriff can show sufficient cause to the court at the next succeeding term\u201d after judgment nisi has been entered against him. Upon motion and proof that a sheriff has failed to return process delivered to him, as directed in the process and required by law, the party aggrieved is entitled, as of course, to judgment nisi against him. G.S. 162-14; G.S. 162-15; Ex parte Schenck, 63 N.C. 601. \u201cAn amercement is a penalty, and is for a fixed sum without regard to the little or much of the plaintiff\u2019s damage.\u201d Thompson v. Berry, 65 N.C. 484, 485. The penalty is imposed upon the delinquency of the sheriff for failing to make due return of the execution unless, at the next succeeding term after judgment nisi is entered against him, he shows to the court sufficient cause to vacate the tentative amercement. Turner v. Page, 111 N.C. 291, 16 S.E. 174. If the issue is in dispute, whether the return was made in proper time is a question of fact to be decided by the jury. Waugh v. Brittain, 49 N.C. 470. The one hundred dollars is given to the plaintiff in the execution \u201cupon the theory that he is aggrieved, but chiefly as a punishment to the officer, and to stimulate him to active obedience.\u201d Richardson v. Wicker, 80 N.C. 172, 173. Accord, Yeargin v. Wood, 84 N.C. 326; Hathaway v. Freeman, 29 N.C. 109.\nThis appeal presents one question: Is the conclusion of the trial court that the judgment nisi should be vacated, and the rule against Sheriff Oliver discharged, supported by his findings of fact? Cratch v. Taylor, 256 N.C. 462, 124 S.E. 2d 124. In substance, the judge\u2019s findings are these: (1) Plaintiff\u2019s attorney did not give the sheriff any information with reference to the whereabouts of defendant or his property; (2) Johnston County is a large county and the sheriff\u2019s office is not staffed commensurately; (3) The sheriff and his deputies, \u201cwithin the time prescribed by law for return of said execution,\u201d made diligent effort to locate defendant but were unable to do so. Do these findings constitute \u201csufficient cause\u201d for the court to discharge the rule against Sheriff Oliver?\nIn Morrow v. Allison, 33 N.C. 217, the sheriff\u2019s defense to an amercement nisi was that, before the day for the return of the execution, the plaintiff and his judgment debtor entered into an agreement \u201cto suspend the collection of the money mentioned in the writ, with a view to a settlement between them in relation to it.\u201d The trial judge instructed the jury that the sheriff\u2019s defense was good. On appeal, this Court ordered a new trial, saying through Ruffin, C.J., \u201cAn agreement to suspend the collection of the debt, or to stay the execution, as it is commonly called, even if communicated to the sheriff, gives no authority to the officers not to return the writ.\u201d\nIn Bell v. Wycoff, 131 N.C. 245, 42 S.E. 608, the sheriff failed to make timely return of a summons which he had been unable to serve upon a defendant who was out of the state. Judgment nisi was entered. At the subsequent hearing, the officer offered evidence tending to show that (1) he was under the impression that the process was returnable \u201cthe latter part of August,\u201d and (2) he had used due diligence in seeking out the person to be served and had retained the process upon information that defendant might return to the state. It was held that neither contention afforded \u201csufficient cause.\u201d Addressing itself to the latter point, the Court said:\n\u201cBefore undertaking to obey the precept he should have read and learned its contents and known what he was \u2018commanded\u2019 to do. This he neglected and failed to do, for which he was inexcusable, and will have to bear the burden of his own (or his deputy\u2019s) carelessness.\n\u201cHis diligence in undertaking to locate the defendant and to serve the summons upon him when he should reach the county was incumbent upon him, and in doing so he only discharged his duty to that extent. But in holding the summons after the return day for the purpose, as he conceived, of performing his duty and accommodating the plaintiff, was a misconception of duty and does not protect him against the penalty. To accommodate the plaintiff was no part of his duty. An officer should discharge his duties faithfully and impartially, and accommodate his acts and doings to the requirements of law and his oath of office, and not to aid friends and favorites, or to incur the favor of any particular person or persons. Why a case so utterly devoid of merit should be taken by appeal to this Court we are unable to conceive.\u201d Id. at 249, 42 S.E. at 609.\nThe courts have no \u201cdispensing power\u201d to relieve a sheriff from the penalty imposed by G.S. 162-14. Swain v. Phelps, 125 N.C. 43, 34 S.E. 110. In Swain, the sheriff failed to serve a summons, but plaintiff suffered no injury because the defendant voluntarily appeared in court. The trial judge discharged the .amercement nisi against the sheriff. On appeal this Court reversed, saying,\n\u201cIt is no excuse that the sheriff had no corrupt or bad intentions and that the plaintiff was saved from any resulting injury by the voluntary appearance of the defendant . . . This amercement of $100 is given for the neglect to. serve process when no sufficient cause is shown, and none has been shown.\n\u201cThe highest considerations of public policy require that sheriffs shall not be negligent in the service of process committed to them. . . . Ignorance of the officer is no excuse. . . . Whether any damage was done to the plaintiff is immaterial. The amercement is for failure to discharge an official duty.\u201d Id. at 44, 34 S.E. at 111.\nObviously, Judge Copeland\u2019s findings, although they may explain why the sheriff did not execute the writ and collect the money due on plaintiff\u2019s judgment, cannot excuse his failure to comply with the court\u2019s order that he return the execution, with the appropriate endorsement, within 60 days of its issuance.\nIn this century, few cases involving the amercement of a sheriff have reached this Court, but, as the cases cited herein indicate, amercement was a frequent occurrence in years gone by. The public policy which prompted the enactment of Chapter 118 of the Laws of 1777 (unchanged as G.S. 162-14 except that the penalty of $100 was then 50 pounds) is no less valid today \u2014 and the need for such a statute, as this case indicates, is no less real. The statute imposes no undue hardship upon sheriffs. To have avoided liability in this instance, Sheriff Oliver need only have written upon the execution that, after due diligence and search, he was unable to find defendant or any property belonging to him in Johnston County and, within the 60 days specified in the execution, mailed it to the Clerk of the Superior Court of Wake County. Massengill v. Lee, 228 N.C. 35, 44 S.E. 2d 356. Cf. Turner v. Page, supra. Instead, he held the process for 154 days. Having made no return in 60 days, and having shown no sufficient cause for such failure, the amercement nisi against him should have been made absolute. Graham v. Sturgill, 123 N.C. 384, 31 S.E. 705.\nThe judgment below is vacated, and this cause is remanded for the entry of judgment absolute.\nReversed and remanded.\nMoore, J., not sitting.", "type": "majority", "author": "Sharp, J." } ], "attorneys": [ "Allen Langston for plaintiff appellant.", "Knox V. Jenkins and Harry E. Canaday for Sheriff of Johnston County." ], "corrections": "", "head_matter": "BROGDEN PRODUCE COMPANY v. ALLMOND STANLEY.\n(Filed 16 June, 1966.)\n1. Execution \u00a7 3\u2014\nAn execution must be returned to the place from which it originated, with such endorsements as the law requires, not more than 90 days after its issuance. G.S. 1-310.\n2. Sheriffs \u00a7 4\u2014\nWhere it is stipulated or proven that a sheriff failed to return execution of a judgment to the court issuing it within the 60 days required by the execution, the party aggrieved is entitled to judgment nisi against the sheriff as a matter of course, G.S. 162-14, G.S. 162-15, and amercement of the sheriff should be entered at the next succeeding term after the judgment nisi unless the sheriff shows to the court sufficient cause to vacate the judgment, the amercement being a penalty imposed upon the sheriff as a punishment for his failure to discharge a duty imposed by statute.\nS. Same\u2014\nFindings that plaintiff\u2019s attorney failed to give the sheriff information with reference to the whereabouts of the judgment debtor or his property, that the sheriff\u2019s territory was extensive and his staff small, and that the sheriff, within the time allowed, had made diligent effort to locate defendant but was unable to do so, held insufficient to show cause why the judgment nisi against the sheriff for failure to return execution within the statutory time should not be made final.\n4. Same\u2014\nThe courts have no \u201cdispensing power\u201d to relieve a sheriff of the penalty imposed by G.S. 162-14.\nMoore, J., not sitting.\nAppeal by plaintiff from Copeland, S.J., January 1966 (Non-jury) Civil Session of WaKE.\nRule on the Sheriff of Johnston County to show cause why an amercement nisi for failing to make timely return of an execution in plaintiff\u2019s favor should not be made absolute. These facts appear of record:\nPlaintiff, Brogden Produce Company, recovered judgment in the principal sum of $354.37 against defendant, Allmond Stanley, in the Superior Court of Wake County on November 9, 1964. A transcript of this judgment was docketed in the Superior Court of Johnston County, and, on August 5, 1965, the Clerk of the Superior Court of Wake County issued execution, returnable within 60 days, to the Sheriff of Johnston County. The sheriff received this execution on August 7, 1965. He had not returned it on December 29, 1965, and, on that day, plaintiff moved under G.S. 162-14 and G.S. 162-15, that a judgment nisi be entered against the sheriff. His Honor, James H. Pou Bailey, entered judgment nisi for $100.00 against Rayford Oliver, Sheriff of Johnston County, and directed him to show cause why the judgment should not be made absolute. Thereafter, on January 6, 1966, the sheriff returned the execution endorsed \u201cPayment demanded. Payment refused. Nothing found to levy on.\u201d\nThe rule to show cause came on to be heard before his Honor, J. William Copeland, judge presiding at the January 1966 Session. He entered an order in which, in addition to the facts set out above, he found the following:\n1. Neither counsel for plaintiff nor anyone else ever informed the sheriff where defendant or his property could be found, nor did he give the sheriff any assistance whatsoever.\n2. Geographically, Johnston County is one of the three largest counties in this State, and it has a population in excess of 60,000.\n3. The Sheriff of Johnston County has only 6 deputies to assist him in performing the duties of his office.\n4. Upon receipt of the execution in question, and within 60 days thereafter, Sheriff Oliver and his deputies, from time to time, made diligent search for defendant, but were unable to locate him.\n5. In December 1965, counsel for plaintiff came to the sheriff\u2019s office in Johnston County and \u201cabout that time the judgment debtor was located,\u201d and the execution returned mulla bona.\n6. Sheriff Oliver \u201cwas not negligent in any regard, but, on the contrary, did exercise diligence at all times.\u201d\nJudge Copeland concluded that these findings were \u201csufficient cause to relieve\u201d the sheriff of the judgment nisi, and he vacated the amercement. From this judgment plaintiff appeals.\nAllen Langston for plaintiff appellant.\nKnox V. Jenkins and Harry E. Canaday for Sheriff of Johnston County." }, "file_name": "0608-01", "first_page_order": 644, "last_page_order": 649 }