66 P. 635 | Kan. | 1901
During the year 1897 John W. Skinner was the sheriff of Cowley county, and in actual possession of the office. In the latter part of that year the probate judge of Cowley county ordered that two girls be committed to the industrial school for girls, and instead of issuing the warrant to the sheriff, who was ready and willing to serve such process, he directed it to Frank W. Sidle, as special sheriff, who executed the writ, and filed a claim against the county for services and expenses for $71.85. Later, the probate j udge ordered two other girls conveyed to the soldiers’ orphans’ home, and directed that Sidle, as special sheriff, convey and commit them to that institution. This was done by Sidle, who presented a claim for $102.88 against the county for mileage and expenses. Still later, a girl was committed to the industrial school for girls, and the probate judge appointed N. Phelps special sheriff to convey her to the institution, which he did. His claim for services and expenses presented to the county commissioners amounted to $62.08. Before any action was taken on these bills, three separate proceedings were brought by the sheriff against the county commissioners to recover fees and compensation for conveying the girls mentioned to the public institutions, and because the special officer in each case was claiming for the same service he was made a party defendant to the action. By consent of all parties, the three actions were consolidated in one, and subsequent pleadings were filed and the case tried on the theory that all the causes of action were embraced in the single consolidated action, and without objection from any one. The result was a judgment in favor of the defendants.
“ Such a presentation of a claim constitutes no part of a plaintiff's cause of action. It is merely a part of the mode of procedure to enforce the causes of action already existing. And if the plaintiff fails to resort to this mode of procedure, the failure is merely matter for defense — merely matter for plea in abatement, to be set up by the defendant itself."
The defendant set up the non-presentation of the claims in its answer, but it is conceded that no proof was offered in support of this defense.
“All writs, orders and other process of the probate •court shall be issued and directed to the sheriff of the proper county where such process is to be served; provided, that in the absence or non-attendance of the sheriff, the probate judge may appoint any elector of his county and swear him as a special sheriff for the service of any such process; a minute of which appointment and oath shall be entered on the record and indorsed on such process.” (Gen. Stat. 1901, § 1979.)
It is conceded that “absence,” as used in the statute, means the absence of the sheriff from the county where the process is to be served; but it is argued that “non-attendance” is a narrower term, and that if the sheriff is not personally present in the room or within the view of the probate judge, when the process is issued, he is not in attendance, and that a special officer may then be appointed. In Webster’s International Dictionary a definition of “attend” is “to accompany or be present or near at hand, in pursuance of duty; to be ready for service ; to wait or be in waiting” ; and the definition given by some other lexicographers is “to be present or within call.” The sheriff was ready for service and within call of the probate judge when the writs in question were issued. The offices of the sheriff and probate judge were only about 150 feet apart, in a group of public buildings, and within the same enclosure. The sheriff was within easy reach of the probate judge, whose duty it was to call
The statutes require that all county officers shall hold their offices at the same place, and generally they occupy the same building or group of buildings. The law contemplates that they shall be accessible to each other, so that they may cooperate in carrying on the public business ; and when the sheriff is in his office, near at hand, ready to serve any writs which the probate judge may issue, there is no reason or excuse for the appointment of special officers. Granting that the terms employed in the statute are open to more than one interpretation, that construction should be placed upon them which will make them harmonize with public policy; and, as we have seen, the policy of the law is that process shall be served by the officers legally chosen for that purpose, and who have given bonds for the faithful performance of their duties. (Dolan v. Topping, supra.)
It follows that the judgment of the district court must be set aside ; and in behalf of the plaintiff in error it is contended that there is no substantial controversy as to the facts, and that the judgment ought to be-ordered in his favor. Under the statute, we are without power to render a final judgment in the case or direct what judgment should be rendered, The supreme court may direct judgment to be entered only in cases where the facts are agreed to by the parties or found, by the court below, and when it does not appear, by exception or otherwise, that such findings
The judgment will be reversed, and the cause remanded for further proceedings.