19 Neb. 152 | Neb. | 1886
This cause arises upon a motion by the plaintiffs in error made in the court below, on notice to the defendant, an ex-sheriff of Platte county, to amerce him for failing to return a writ of execution issued by the clerk of the district court of said county, and directed and delivered to the said defendant while acting as such sheriff.
No answer or pleading of any kind was made or filed by the defendant. The matter was tried to the court, which found that said motion should not be sustained, and that said sheriff is not liable to amercement; and adjudged that said motion be overruled, and said cause dismissed at the cost of said plaintiffs, etc. The plaintiffs bring the cause to this court on error.
There is but one error assigned, to-wit: “ That the finding and judgment of said court is against the evidence and law of the case.”
It appears from the evidence as preserved in the bill of exceptions that the execution, the alleged failure to return which constituted plaintiffs’ cause of action, was issued on the 17th day of June, 1881, and was returned to the clerk’s office on the 21st day of January, 1882. This evidence is not very satisfactory; the execution seems to have been lost; and the return was not transcribed into the execution docket; but something was pasted in the docket which it seems indicated the date of the return as above. The clerk testified that the reason why he did not enter the return in the docket was that it was too large; and the reason why he did not enter the date at the time was that the execution was lost.
It also appears that the execution above referred to was issued against the property of E. A. Baker and H. P. Ba
There was, therefore, evidence before the trial court from
The case of Crooker v. Melick, 18 Neb., 227, presented the question whether, in a proceeding to amerce a sheriff for failing to return an execution according to the command thereof, he could successfully defend by alleging and proving that the execution debtor had no property or ■effects out of which the execution or any part of it could have been collected. After a thorough examination and discussion of the question, we came to the conclusion that he could, and so decided that case. Since the presentation of this case we have carefully gone over the ground again, but fail to find any good reason to change the views there expressed. The judgment of the district court is therefore affirmed.
AFFIEMED.