BEFORE ROY NOBLE LEE, BOWLING and DAN LEE
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Martha Moore Bonds has appealed from a decree of the Chancery Court of Tishomingo County., favorable to her and against James J. Bates, Sheriff of Tishomingo County, in the sum of sixteen hundred eighty dollars ($1,680), resulting from the failure of Sheriff Bates to return a writ of execution on the return date. She contends that the decree should have ordered payment of the full judgment in the amount of twenty-one thousand eight dollars ninety-four cents ($21,008.94). Sheriff Bates cross-appealed and contends that Mrs. Bonds was not entitled to a judgment against him for any sum.
Did the lower court err in awarding appellant $1,680.00 against the appellee, rather than $21,008.94, as provided by statute?
Did the lower court err in holding that there were not slight circumstances which relieved the appellee James J. Bates, Sheriff of Tishomingo County, from the penal application of Mississippi Code Annotated 19-25-41 (1972), as amended?
The material facts of the case are uncontradicted. On May 24, 1977, the Chancery Court of Tishomingo County entered a decree awarding appellant judgment in the amount of $21,008.94 against George Mitchell Bonds for child support and alimony. Subsequently, a writ of garnishment was issued against Life and Casualty Insurance Company of Tennessee directed to the cash value of three separate insurance policies issued in the name of Bonds. On January 27, 1981, a writ of execution was issued by the Chancery Clerk of Tishomingo County for the purpose of levying on certain personal property of Bonds and was returnable to the third Monday of February, 1981, being the first day of the February Term of Chancery Court in Tishomingo County.
The February, 1981 Term of the court convened and passed without the writ of execution being returned by Sheriff Bates. Likewise, no return was made on the writ of execution at the May, 1981 Term of the Tishomingo County Chancery Court.
On March 31, 1981, a motion was filed by appellant's attorney to recover judgment against the sheriff and his sureties for the amount of the execution (judgment) and was heard in vacation in June, 1981. The lower court found that the return was not made until June 2, 1981; that the sheriff had not been misled by the judgment creditor or her attorneys, either directly or indirectly, in any way; and that very slight circumstances were not present in the case which would exempt the sheriff and his sureties from liability imposed under Section 19-25-41. *fn1
The pertinent part of Section 19-25-41, with which we are confronted, follows:
If any sheriff or other officer properly authorized to act for him, shall fail to return any execution to him directed, on the return day thereof, the plaintiff in execution shall be entitled to recover judgment against the sheriff or other officer, and his sureties, for the amount of the execution and all costs, with lawful interest thereon until the same shall be paid, and with five per centum on the full amount of the judgment as damages, to be recovered by motion before the court to which the execution is returnable, on five days' notice first being given thereof. . . .
The above section dates back to Hutchinson's Code of 1848 and has remained practically unchanged. Beginning with Morehead v. Holiday, 1 Smedes & M 625 (1844), which antedates Hutchinson's Code of 1848, the Court cited a statute which provided that:
If any sheriff shall fail to return an execution to him directed, on the return day thereof, the plaintiff in the execution may recover judgment against such sheriff, and his sureties, for the amount of such execution, with five per cent damages, by motion before the court, to which said execution is returnable, with eight per centum interest on the same till paid. [1 Smedes & M at 627].
In construing the statute, the Morehead Court said:
This provision is too plain to require comment. The failure of the sheriff to make return in due time, renders him absolutely and without exception liable for the debt. The measure seems to be a harsh one, but having been imposed by the legislature, we have no power to dispense with it. The pleas offered ...