41 Kan. 276 | Kan. | 1889
The opinion of the court was delivered by
This is an original action brought in this court for the purpose of discharging the petitioner, Frank Farr, who it is alleged is illegally restrained of his liberty by Thomas Boyle, the sheriff of Lincoln county. An action was commenced in the district court of Lincoln county by the Waterman Bros, against Farr, to recover certain personal property. Subsequently, under the provisions of § 188 of the civil code, an attachment was issued against Farr, commanding the sheriff of Lincoln county to arrest and bring him before the district judge for examination as to the possession of the property described in the order of delivery. At the time that Farr was brought before the district judge of Lincoln county, he was at Salina, in Saline county; upon the examination, the district judge found that Farr had willfully removed a part of the property in dispute from Lincoln county, and concealed the same so that it could not betaken under the process of the court.
Upon the record and the evidence submitted, we think two questions only are presented for consideration. First: Was it necessary, before the arrest of Farr, to serve upon him the order of delivery, or any rule or order of the court to show
“In an action to recover the possession of specific personal property, the court, or judge in vacation, may, for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto, by attachment, and may examine either party as to the possession or control of the property. Such authority shall only be exercised in aid of the foregoing provisions of this article.”
The order of delivery issued in the action of Waterman Bros, against Farr, commanded the sheriff to take the property described therein, but as he could not find the property on account of its concealment, he was unable so to do. At the commencement of the action a summons in the case was served by leaving a copy thereof at Farr’s usual place of residence; before the attachment was issued Waterman Bros, presented to the judge of the district court their application, supported by affidavit, for the arrest of Farr, and alleging therein that the property sought to be recovered was eloigned, and concealed by him. Farr knew before he was arrested under the second order of attachment, which was dated the 4th of December, 1888, of the commencement of the action by Waterman Bros., and before he was arrested under the order of that date he had refused to turn over the property in controversy; therefore we do not think his arrest or detention is illegal on account of the failure of the sheriff1 to serve upon him a copy of the order of delivery, when his action prevented the sheriff from executing the order; nor do we think it necessary, in such an action, that any rule or order of the court must be first served upon a defendant to show cause before the issuance of the writ of attachment against him.
The objection to the sufficiency of the order of commitment is well taken. Section 705 of the civil code requires that all orders of the judge, in vacation or at chambers, shall be entered upon the journal of the court by the clerk.
Section 700 of the code provides: “Thestyle of all process shall be: ‘ The State of Kansas.’ It shall be under the seal of the court from whence the same shall issue; shall be signed by the clerk, and dated the day it is issued.”
The process, or commitment under which Farr is held is signed by the judge only; it is not entitled “The State of Kansas,” nor signed by the clerk, nor has it his official seal attached thereto. After the examination of Farr before the district judge, the order of the judge should have been entered upon the journal of the district court of Lincoln county by the clerk thereof, and the commitment should have been issued by him, as required by said § 700.
The statement that Farr was arrested in Graham county and by virtue of that arrest confined in the county jail of Lincoln county, is not supported by the evidence. It is true he was arrested in Graham county, but escaped before reaching Lincoln county. Afterward he was rearrested in Lincoln county upon a new process.
If the sheriff of Lincoln county has disobeyed the orders or the commands of the probate judge of his county, the duty devolves upon that judge to punish, if any punishment is allowable. This court, in this proceeding, cannot enforce the orders of the probate judge, nor are we called upon to determine whether the sheriff is in contempt of that judge, or not.
For the defects in the commitment, the petitioner will be discharged, and will also recover his costs.