Raff v. State

48 Kan. 44 | Kan. | 1892

The opinion of the court was delivered by

Horton, C. J.:

On the 6th day of December, 1883, a judgment was rendered on a forfeited recognizance in the district court of Harper county, in favor of the state of Kansas, against Hiram Raff and others, for $3,000, with interest and costs. On the 12th day of May, 1885, an execution was issued by the clerk of the district court of Harper county on the judgment to the sheriff of Reno county to collect the same. Hiram Raff and others then commenced an action in the district court of Reno county against the sheriff of that county, to obtain an injunction restraining him from levying the execution or attempting to collect the amount thereof. In that action, the board of county commissioners of Harper county was made a party defendant, on its application, but neither the state of Kansas, nor any officer of the state, nor the county treasurer of Harper county, nor any treasurer of the school districts of that county was a defendant. On the 29 th day of July, 1887, the sheriff was perpetually enjoined from levying or attempting to levy the execution, and the sheriff and the county commissioners of Harper county were also enjoined from attempting to collect the execution by virtue of any process issued thereon. The defendants excepted to that judgment, and prosecuted proceedings in error in this court. At the July term of this court for 1889, the judgment was reversed, and the cause remanded to the district court, with instructions to render a judgment in favor of the sheriff and the other defendants. (Smith v. Collins, 42 Kas. 259.) While the case was pending in this court, and on June 4, 1888, Hiram Raff die,d. On June 28 of the same year, his widow, Emma Raff, who was the sole heir, was appointed administratrix of his estate. On November 21, 1888, the judgment in the district court of Reno county was revived by consent against the personal representative of Hiram Raff, deceased, and soon after the action was also revived in the supreme court, with consent, against such personal representative. On April 8, 1889, the state — the plaintiff in the judgment in Harper county against Hiram Raff — filed its motion in the district court of that county for an order reviving the judgment against Mrs. Raff, the sole heir and the personal representative of Hiram Raff, deceased. The motion to revive was granted. Mrs. Raff excepted, and brings the case here.

It is insisted that the state of Kansas was not entitled to revive the judgment rendered in the district court of Harper conrty so long as the injunction rendered by the district court of Reno county remained unreversed. In the action brought by Hiram Raff and others in Reno county, neither the state of Kansas, nor any officer of the state, nor the county treasurer of Harper county, nor any treasurer of the school districts of that county, was'defendant. Section 332 of the criminal code-provides:

“All fines and penalties imposed, and all forfeitures incurred, in any county, shall be paid into the treasury thereof, to be applied to the support of the common schools.”

In the case of Blake v. Comm’rs of Johnson Co., 18 Kas. 266, this court expressly declares that the county treasurer is by the statute made the proper party to collect moneys due on a judgment of a forfeited recognizance, and that his duty is to-pay the money collected on such a judgment to the school-district treasurers. And. this has been the uniform practice-in this state ever since its admission. The order of revivor in Harper county was not in violation of the injunction rendered in Reno county. The judgment had tb be revived within the year; otherwise it could not be revived except by consent. (Civil Code, §§ 433, 434; Green v. McMurtry, 20 Kas. 189; Myers v. Kothman, 29 id. 19; Tibbetts v. Deck, 41 id. 492.) The order was necessary to keep the judgment from becoming dormant, and was not an attempt to collect the same by virtue of any process. It was not made at the instance or at the request of any defendant in the Reno county injunction case.

The order and judgment of the district court will be affirmed.

All the Justices concurring.