33 Minn. 147 | Minn. | 1885
“If any sheriff fails to settle with and pay- over to the person entitled thereto any money he may have collected or received
The proceedings brought before us by the present appeal were instituted under section 199, supra, for “misconduct in relation to the execution” of a writ of execution issued out of the district court of the county of Chisago, and delivered to the appellant, Sloggy, as sheriff of Clay county, for execution.
1. The order to show cause, provided for in section 199, (by reference to section 198,) was properly granted by the judge of the district court from which the execution issued. It was the process of that court, and there was, therefore, a natural and intrinsic propriety in requiring the sheriff to show cause before that court, and in the district where that court sat; and this would appear to be the plain meaning of the statute and the proper mode of procedure, notwithstanding the inconvenience and hardship to which it may sometimes subject a sheriff by compelling him to appear at a distance from his bailiwick. See Griswold v. Chandler, 22 Tex. 637; Smith v. Martin, 20 Kan. 572.
2. As respects the pecuniary amount of the injury suffered by plaintiff, it appears to be undisputed that the appellant sheriff failed to collect any part of the amount of the execution during its life, though there was sufficient property of defendants pointed out to him, out
3. In view of these considerations, the affidavits used upon the hearing below amply warranted the district court in finding that the appellant sheriff was “guilty of misconduct in relation to the execution of said writ of execution issued to him, * * * and of wilful neglect and violation of his duty as such sheriff, by his refusal, neglect, and failure to levy said execution upon the property of the defendants above named, as commanded by this court in and by said execution, and demanded and repeatedly directed to do by the plaintiffs’ attorneys herein; and that such misconduct, neglect, and violation of duty tended to and did defeat and impair the right and remedies of the plaintiffs herein, and cause an actual loss to them of the full amount of their judgment, interest, and costs herein against the defendants.”
4. Upon the state of facts thus found, the district court, under sections 198 and 199, supra, was authorized to require the “correction” of the injury done, — that is to say, to require the sheriff to make good the loss which his misconduct had occasioned, and “in addition” to impose a fine not exceeding f200 “for the use of the county;” that is to say, of the county from which the process issued, and where process may in a just sense be said to have been disobeyed. And to enforce the “correction” required, and payment of the fine imposed, the court was further authorized, by section 198, to which section 199 refers for the appropriate procedure, to commit the sheriff to the
The procedure which the statute authorizes in cases of this kind is necessarily summary and rigorous. The courts must have control of their officers, and power to compel the prompt and faithful execution of their processes. To permit an officer to whom judicial process is issued to set himself up as an independent authority, as such officers are sometimes inclined to do, and execute or not, at his pleasure and leisure or those of the judgment debtor, with impunity, would make the administration of justice a practical mockery; and these and kindred considerations have been acted upon, not only in our legislation, but elsewhere. Rex v. Sheriff of Middlesex, 1 H. Bl. 543; and see 2 Hawk. P. C. c. 22, § 2; Code Ga. 1873, § 3949; Wakefield v. Moore, 65 Ga. 268; Code Ala. (1876) §§ 3356, 3358; Andrews v.Keep, 38 Ala. 315; State v. Tipton, 1 Blackf. 166; Comp. Laws Kan. 1881, § 4003; Smith v. Martin, 20 Kan. 572; Bond v. Weber, 17 Kan. 410; Rev. St. Tex. 1879, §§ 2326, 2327; Griswold v. Chandler, supra.
Order affirmed.