8 Kan. App. 657 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
This is an action for an injunction, brought by Baxter in the district court of Marion county, to restrain Yeagley and B. R. Davis, the sheriff of the county, from selling certain personal property. Baxter had brought an action in justice’s court against one Charles Waddell, in which a judgment was rendered in his favor. An execution was issued thereon and levied on the personal property in controversy. After the commencement of Baxter’s action, but before judgment was rendered therein, Yeagley, this defendant in error,'commenced an action against said Waddell before the same justice of the peace and caused an order of attachment to be issued therein which was delivered to the defendant in error Davis, as sheriff, to serve. Davis, having other
The appointment of Myers by the sheriff, was not indorsed on either of the writs, nor made in writing, nor was the return of either writ verified. The levy of Baxter was made subsequent to the attachment of Yeagley andón the.same property, and this action was brought to enjoin the sale thereof by the sheriff by virtue of the attachment. A temporary writ was issued, which upon the hearing was dissolved. Baxter brings the case here for review.
As we view this case, the only question necessary to be determined is the authority of Myers to serve the writs. This involves an examination of the authority of sheriffs to appoint persons to do particular acts. Sec-, tion 5 of chapter 88, General Statutes of 1897 (Gen. Stat. 1889, 1763), among other things contains the following - language : “And persons may also be deputed by such sheriff or under-sheriff in writing to do particular acts.’.’ Section 62, chapter 95 (Gen. Stat. 1889, ¶4142 ), provides
“The' summons shall be served by the officer to whom.it is directed, who shall indorse on the original*659 writ the time and manner of service. It may be also served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be indorsed on the writ. When the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of the state, the return shall be verified by oath or affirmation.”
These are the only sections of the statute which we find or have been referred to which authorize a sheriff to appoint a deputy to do special or particular acts in civil cases. Assuming that the sheriff has only such powers as are delegated to him by the statute, we must hold that when he deputizes a person to do a particular act the appointment must be in writing, and if the appointment is to serve a summons, the authority must be indorsed on the writ. The authority not appearing on the summons, Waddell was not summoned, and needed not to appear; in fact, he did not appear, and judgment was rendered by default. The justice obtained no jurisdiction of his person, and the judgment is void.
It is contended by the defendant in error that the appointment by a sheriff of a special deputy to serve process issuing from a justice's court is governed by the statute allowing constables to appoint deputies. Section 80, chapter 103, General Statutes of 1897, (Gen. Stat. 1889, ¶ 5061), provides as follows :
“All process provided for by this act may be directed to the sheriff of the county, in the discretion of the justice, and be by the sheriff served and returned in the same manner as provided for in cases where the-same is issued to the constable.”
The authority of constables to appoint deputies is. contained in section 3, chapter 105, General Statutes;
"All constables shall be ministerial officers in justice's courts in their respective counties, and civil and criminal process may be executed by them throughout the county, under the restrictions and provisions of the law. They may appoint one or more deputies, who may perform the same duties as their principals, and such principals shall be responsible on their official bonds for the acts of such deputies.”
We need not determine the manner in which constables may appoint deputies. Section 30, chapter 103, supra, provides that the sheriff shall serve and return process in the same manner as provided for in cases where the same is issued to the constable. This has no reference to the manner in which he appoints his deputies.
Section 31, following (Gen. Stat. 1889, ¶ 4858), explains fully what is meant by the manner and time of service and return. It must be served at least three days before the time of appearance, in the following manner : "By delivering a copy of the summons, with the indorsements thereon, ... or leaving the same at his usual place of residence.” It is returnable not more than twelve days from its date in some cases and not more that thirty days in others. It is not necessary to determine the effect of the failure of Myers to verify his return.
The judgment of the district court is reversed, and the case remanded with instructions to grant the injunction.
