Mullins vs. Johnson, Rayburn & Co., 3 Hum. 396

Turley, J. delivered the opinion of the court. On the 17th day of December, 1841, defendants in error recovered a judgment in the .circuit court of Lincoln, against Augustus H. White, for the sum of $339 12 debt and damages, and $7 94 cost. Upon this judgment an execution was issued on the 13th day of January, 1842, returnable the 1st Monday in April, 1842, which was placed in the hands of the plaintiff in error, the sheriff of the county, on the 19th day of January, 1842.

On the 2d day of April, 1842, said sheriff returned said execution into the office of the clerk of said circuit court, with the following return: “Levied this fi. fa. on a small remnant of store goods; sale 8th of April, 1842. March 21st, 1842.” Upon this return, plaintiff in the execution moved for’ a judgment against the sheriff, at the same term, which was given for debt, damages and cost.

After the judgment was rendered, the sheriff' moved the court for leave to amend his return upon the execution, which was granted him; he then made it in the words following: “From the press of other pressing official engagments and appointments, I cannot attend to sell the above property before the return day of the within fi.fa. I have therefore fixed upon the Sth day of April, 1842, to sell the same, this the 21st day of March 1842; this 5th day of April, 1842.

No other property of the defendant to be found in my county out of which to make the money called for in this f.fa.” Upon this amended return the court was asked to set aside the judgment previously rendered, but refused, and this writ of error is prosecuted to reverse the same. We are of opinion there was no error in rendering the judgment, nor in refusing afterwards to set it aside.

The first return was clearly an insufficient and illegal return and therefore no return — and whether the amended return be any better need not be determined — as we hold, that an officer cannot be permitted to amend his return, so as to avoid a motion pending against him for not having made a return. Judgment affirmed.