80 Kan. 302 | Kan. | 1909
Lead Opinion
The opinion of the court was delivered by
The only question presented in this case is whether the first two executions issued were void. If these executions were void, the judgments, upon which the two following executions were issued, were dormant, and the executions neither received life from the judgments nor imparted life thereto. (Denny v. Ross, 70 Kan. 720.) If, however, the first two executions were only voidable, they were sufficient to prevent the judgments from becoming dormant.
While the issuing of one execution upon two separate judgments is irregular, it is the opinion of the court, but not of the writer, that if the execution is sufficient
The district court held that the first two executions did not sufficiently identify the two judgments upon which jointly the executions were successively issued, and in this the court erred. The order of the court quashing the two executions issued to the sheriff of Trego county is therefore reversed, and the case is remanded with instructions to deny such motion and to make an order confirming the sale, if the sale is otherwise found to be regular.-
Concurrence Opinion
(concurring specially) : I concur in the result stated, but think it pertinent that further reference be made to the authorities. Two objections are made to the execution which the trial court held void. One is that it did not distinctly refer to the judgments on which it was based; the other is that it was a single execution issued upon two separate judgments. So far as relates to the failure of the execution to recite the judgments with accuracy, the weight of authority supports the view, which is in harmony with modern ten
“There is a just distinction between executions issued without authority, and executions issued under an authority which is erroneously pursued. . . . The former class is void; the latter may, with equal propriety, be termed either irregular or erroneous. When an execution can properly issue, a mistake made by the officer in performing the duty of issuing it is necessarily a mere error or irregularity. ... If, from the whole writ, taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced as an execution upon the judgment shown to the court, then we apprehend that the writ ought to be received and respected.”
The question presented by the other objection is in effect whether the act of a clerk in combining what should be two separate executions — using one piece of paper where he ought to use two — renders the resulting instrument an absolute nullity. By the test proposed in the foregoing quotation it would seem not. Authority to issue two executions exists; that they are issued in combination instead of separately is due to a mistake of the clerk, and therefore, by the criterion suggested, should rank as an irregularity only. In Bigham v. Dover (Ark. 1908), 110 S. W. 217, it was held, following two cases cited in volume 17 of the Cyclopedia of Law and Procedure, at page 932, that a single execution based upon two judgments in favor of different plaintiffs against the same defendant was void. The trial court decided otherwise, and two of the five members of the supreme court dissented. The
Dissenting Opinion
(dissenting) : I am unable to concur in the decision of the court. I think that the execution not only fails to identify two judgments for separate amounts in separate actions, but, on the other hand, misstates the facts. It recites that the two judgments were rendered “in an action” for the sum of $368.07, etc.; also, that Dugan “duly filed his abstract of said judgment.” Of course, if the other facts recited justify the construction, I concede that an “s” should be added to this word “judgment,” and that wherever necessary to harmonize the recitals a noun in the singular should be regarded as plural; but a recital that two judgments were obtained in one action (for “an” is equivalent to “one”), which would be a regular proceeding, to enforce which one execution might regularly issue, contains no suggestion that two separate judgments in independent actions were rendered or that the execution was issued to enforce two such judgments.
It is said in volume 17 of the Cyclopedia of Law and Procedure, at page 932: “Each judgment must carry its own execution, and a single execution can not be issued on two separate judgments.” (Citing Doe, on the Demise of Wilkins, v. Rue and Others, 4 Blackf. [Ind.] 263; Merchie v. Gaines, 5 B. Mon. [Ky.] 126.) These authorities are the only ones cited in the brief that are directly in point; and not a single authority is cited and I have been unable after diligent search to
If one execution can be issued to enforce two judgments of the same date it can be issued to .enforce any number of judgments of the same or different dates, all bearing the same or different rates of interest, provided only that the judgments affect the same parties. The whole policy of our code is that the files and proceedings in each separate action shall be kept separate, the proceedings separately recorded, and all the proceedings under one title; and it is expressly provided in section 117 of the code that Such title shall not be changed in any stage of the cause. This very proceeding in the court below is or should be a part of the proceedings in one of the two, and not of both, actions which originated in the justice’s court in Lincoln county and in which one of the two several judgments was rendered. Each of those actions seems to have the same title, and because thereof this proceeding under the same title in the lower court does not indicate
Again, the sheriff is required by the statute to make return of an execution. The necessary implication is that the return is to be made in the action in which the execution was issued. In which of the two actions was this return made? It does not appear to have been made in either.
It is said in the opinion of the court that the recitals in the execution are sufficient to direct any one seeking information to records which would give him all the pertinent facts. I think, on the other hand, that the recitals are misleading rather than directory. It is recited that two judgments were rendered for $368.07, and $6.23 costs. Whether this is the aggregate amount or the amount of each judgment does not appear. Further it is recited that “Dugan duly filed his abstract of said judgment” and “there remains unpaid on said judgment the sum of $368.07, with interest.” This would seem to indicate that the sum stated is the amount of one judgment, and that the costs, at least, had been paid.
I think the execution itself should inform 'the defendant and the officer to whom it is directed that it is issued on a particular judgment, and the amount of it, although evidence aliunde may cure a defect of . this kind. Suppose the execution in question had been issued to the sheriff of another county in the state to which the defendants had removed, far from Lincoln county, that one of the judgments upon which it is claimed to have been based was void for any cause, and that the defendants desired to pay the valid judgment’: neither the defendants nor the sheriff would have any basis for an adjustment, and the sheriff could not accept payment and make return that one judgment was paid. Then suppose the sheriff had levied upon and sold lands of the defendants in that county, and, on a contested motion to confirm the sale, the court should have found one judgment void: what should have been
The plaintiff in this action, if he had followed the plain provisions of the statute to keep his judgments from becoming dormant, would have been entitled to recover his money. The way to prevent his j udgments from becoming dormant was very plain, simple, and well recognized. He chose to adopt another way, recognized neither by the statute nor by precedent. As well might he have filed the abstract of his two judgments as one.
Mr. Justice Mason cites volume 1 of the third edition of Freeman on Executions, section 43, and several decisions to support the majority decision. With all due deference, I think the citation, if relevant at all, is adverse to his contention. The writer says:
“There is a just distinction between executions issued without authority, and executions issued under an authority which is erroneously pursued. . . . The former class is void; the latter may, with equal propriety, be termed either irregular or erroneous.”
It is intimated that the cases holding executions like the one in question void were decided upon direct attacks. In Doe, on the Demise of Wilkins, v. Rue and Others, 4 Blackf. (Ind.) 263, an' execution issued upon two judgments was declared void after a sale of land which had been had thereon to satisfy it and another valid execution. The sale, however, was upheld for the reason assigned: — that one execution was valid, and that the sale was not attacked for ten years after it was made. In Bigham v. Dover (Ark. 1908), 110 S. W. 217, one execution was issued on separate judgments. A levy thereof was made on a saddle, and the saddle was sold thereunder. The lower court sustained the sale, but its decision was reversed on the ground that “a joint execution upon two separate judgments is not voidable merely, but void.”
It is said that there are only three decisions found adverse to the validity of executions like the one in question. Not one decision or authority has been found of which it can fairly be said that it sustains the validity of such executions. Possibly one reason that there are only three adverse decisions is that among, the thóusands of decisions published in this country there is no record in any case except these three that any one ever contended that such an execution was valid.
The execution in question is an anomaly — a twin
