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97 Ark. 149

Mills v. Lewis

Supreme Court of Arkansas

Decided January 2, 1911

Supreme Court of Arkansas · decided 1911-01-02

Hays, Judge; statement by the court. Appellant had executions issued on certain judgments it held against Wood & Tucker, a firm of merchants. The executions were placed in the hands of appellee Lewis. They were issued May 6, 1905, and the return day was June 5. Lewis levied upon the goods of the debtors, and advertised same for sale on May 20, 1905. On that day Lewis demanded of the appellant through its attorney an indemnifying bond.

Cited by 6 later decisions — most recently January 1933

6 state decisions

Relies on Hawkins v. Taylor · Williams v. State · Little Rock, Mississippi River & Texas Railway Co. v. Glidewell

Good law ✅— No negative treatment on recordhow we know

affirmed · Decided 1911-01-02

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Wood, J.,

¶1(after stating the facts). The fact that Lewis postponed the sale to May 28, 1905, showed that he had not neglected or refused to make sale of the property taken under the execution. He still had time to properly advertise and make sale of the property before the return day .of the execution. But for the fact that appellant had an alias execution issued and placed in the hands of another officer with directions to take charge of the goods and sell them, Lewis might have made the sale under the execution in his hands according to law. The judgment creditor had control over the executions it had placed in the hands of the officer. It was within the province of the appellant to recall the execution it had placed in the hands of one officer, or to direct him not to make sale under it, even after he had advertised the property for sale. The conduct of appellant in having the alias execution issued and placed in the hands of another constable with directions to levy upon the same property that had been levied upon by appellee Lewis was equivalent to a withdrawal of the execution in the hands of Lewis and a direction to him to' proceed no further under it. This conduct of appellant justified Lewis in acquiescing in the manifest desire of appellant to have the sale made by another officer. Certainly, Lewis and his bondsmen could not be held for the severe penalties denounced by the statute because Lewis did not interpose to prevent appellant from having its own way with the alias execution. “The statute in question is highly penal, and the party invoking it must bring himself within both the letter and spirit of it.” Craig v. Smith, 74 Ark. 364. It “was not enacted as a substitute for an ordinary action to recover the amount due, but was to reach palpable derelictions on the part of the officer.” Williams v. State, 65 Ark. 159. “Its terms should not be extended to cases not within its plain meaning.” Mayfield Woolen Mills v. Lewis, 39 Ark. 488, citing Hawkins v. Taylor, 56 Ark. 45; Moore v. Rooks, 71 Ark. 562.

¶2The judgment is correct. Affirm.

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