52 Kan. 218 | Kan. | 1893
The opinion of the court was delivered by
This was a proceeding in the court below to amerce the sheriff of McPherson county for his failure to return an execution. The defendant below filed his brief within the time prescribed, and also made an elaborate oral argument upon the hearing. The plaintiff below has not filed any brief, and no oral or other argument has been presented in his behalf. In this case the execution debtors had no property in McPherson county whereon to levy the exe
The statute makes it the duty of the clerk of the court to tax the costs to be inserted in the judgment, but the costs so taxed and inserted, as of the date of the judgment, should only include the costs up to and inclusive of the rendition of the judgment. The costs after the rendition of the judgment should be indorsed upon or referred to as accruing or additional costs. Generally, a part of the execution reads:
“Whereas, on the-day of-, 18 — , A. B., plaintiff, recovered a judgment in the said district court of the state of --■, in and for the-, county of-, against-C. D., for the sum of-dollars damages, with interest at the rate of- per cent. - till paid, together with costs of $-, at the date of said judgment, and accruing costs of $-, amounting in all to the sum of-dollars, lawful money of the United States, as appears to us of record.”
The execution, if it had been issued in the usual form, would have recited the judgment of $750, and the costs of $217.25, of the date of the judgment; and the accruing or additional costs, whatever they were, would have been indorsed upon or referred to in the execution as accruing or additional
Within the authority of Fisher v. Franklin, 38 Kas. 251, and Fuller v. Wells, 42 id. 551, the judgment will be reversed, and the cause remanded.