4 S.D. 414 | S.D. | 1893
This is an appeal from an order of the circuit court of Grant county amercing'appellant, as sheriff, for nonpayment of moneys alleged to have been collected by him on execution. The facts are undisputed, and are as follows: In the circuit court of Roberts county, respondents Bostwick obtained a judgment against one Knight, and caused a transcript to be filed in the office of the clerk of the circuit court for Grant county, and thereupon caused execution to be issued by the clerk of the circuit court of said Grant county to the sheriff of such county. That, prior to the issuance of said execution, one Dewees had obtained judgment in said Grant county circuit court against respondents Bostwick. That while said first execution was in the hands of the sheriff as.aforesaid, and before the same was collected, he received, as such sheriff, for collection, an execution issued upon the judgment of Dewees against the respondents Bostwick. While so holding both executions, Knight, the defendant in the first, paid to the sheriff the amount due thereon, and directed him to apply the same on the judgment and execution of Dewees against respondents Bostwick; and he did so, paying the same over to the plaintiff, Dewees. Respondents Bostwick then made demand for' the amount so recovered from Knight, and, payment being refused, brought these proceedings, under Section 5167, Comp. Laws, to amerce the sheriff, in the circuit court of Roberts county. Upon these facts the circuit court made an order requiring the sheriff to
Section 5104, Comp. Laws, provides that a transcript of the original docket of a judgment may be taken from the county in which the judgment was rendered, and filed in the office of the clerk of the circuit court of any other county, and that it shall then be a lien upon any real estate of the judgment debtor in said county, but this does not authorize the clerk of such county to issue execution thereon. Execution may be issued to the sheriff of any county where the judgment is docketed, (Section 5114,) but it must be issued from the county where the judgment was rendered. This is the evident plan of our statute. In some states the statute expressly authorizes an execution to issue from any county in which a transcript is filed, but ours does not, and the power does not exist without statutory authority. Freem. Ex’ns, § 14. The object of our statute in allowing the filing of a transcript in another county is, as stated in said Section 5104, to make the judgment a lien upon the debtor’s real estate in such countjL It confers no authority upon the clerk of such county to issue execution, and any attempt to do so is unauthorized, and the execution is void. It is so held in states having statutory provisions similar to ours. See Seaton v. Hamilton, 10 Iowa, 394; Furman v. Dewell, 35 Iowa, 170; Shattuck v. Cox, 97 Ind. 242. In this case the execution issued by the clerk of the Grant county circuit court on the transcript from Roberts county was void. It recited on its face that it was issued on such transcript, and the sheriff of Grant county, the appellant here, might have declined to accept it or operate under it, but he did not. He treated it as a valid execution, and proceeded under it. Having done so, and collected money upon it, it is very doubtful if he is in position to assert and take advantage of its invalidity in this proceeding.
It was suggested in argument that the Bostwicks might thus be deprived of their exemptions. No more in this case than in any and every case under this provision of the statute, and surely the court could not refuse to recognize the statute because it could see that difficult complications might arise under it. It is sufficient for this case, however, to say that we can only deal with the record before us, and determine the rights of the parties upon the facts presented. It may be that the sheriff assumed some risk in paying this money over to Dewees without informing himself as to whether or not the Bostwicks might successfully claim it as exempt. Upon this point we express no opinion. But neither this court nor the court below could assume that it was so exempt. Pirie v. Harkness, (S. D.) 52 N. W. 581. In the absence of any such evidence,—