Smith v. Martin

20 Kan. 572 | Kan. | 1878

The opinion of the court was delivered by

Brewer, J.:

statement of facts. -This was a proceeding in the district court of Atchison county, to amerce the plaintiff in error as sheriff of Jewell county, for negligence in respect to an execution. The testimony was all in writing, and was somewhat conflicting. These facts are however undisputed: On 29th September 1875, execution was issued from the Atchison county district court, which, on 4th October 1875, was received by the sheriff. At that time no other process against the defendant on the judgment was in the sheriff’s hands. Shortly thereafter orders of attachment against said defendant were issued from the district court of Jewell county and placed in the sheriff’s hands, and by him leviéd upon a stock of goods. The loss of priority was, as claimed by the sheriff, by reason of the attorney’s direction not to levy the execution until further orders. The goods were by order of the judge sold, and the proceeds amounted to about $1,400, several times the amount of defendant-in-error’s judgment. The execution was returned 26th November 1875, showing the receipt of an indemnifying bond, and a levy subject to the levy under the orders of attachment. An alias execution was issued on the 11th of January 1876, which reached the sheriff’s hands on January 13th. Motions were made to dissolve the attachments, and these motions were sustained, to take effect January 14th, at which time the sheriff was directed to return the money in his hands, the proceeds of said sale, to the judgment-debtor. The sheriff returned upon this last execution that he had collected three dollars, and no more.

1.Amending Rreturn of officer. Pending the motion to amerce, the sheriff made application for leave to correct the return on the first execution so as top show that he had demanded an indemnifying bond an(j jjad n0£ recejve(j 0ne, anc| therefore had refused to make any levy. This application was refused. In this refusal it is alleged that the court erred. But we,think not, for these reasons: When an officer makes a return upon process, it is, to say the least, as against him prima fade correct, and he should not be permitted to amend it until he makes it clear that it was erroneous. This, true in all cases, is especially true when the effect of the return as first made is a liability upon him, and the amendment would operate to relieve him from liability. And still more true, when the party in whose favor the return was made, resting upon the faith of the return, would suffer loss by the amendment. Now in the case at bar the return was made in November 1875, and the application to amend in May 1876. The effect of the first return was to cast a liability upon the sheriff; of the proposed amendment, to relieve him therefrom. The plaintiff in the execution might well rest upon the first return; while if it had been as in the proposed amendment, he would naturally have taken other steps to collect his debt. Upon the testimony it would seem probable that the sheriff did not receive any indemnifying bond, but also probable that one was prepared and forwarded from Atchison to Jewell county, to be delivered to him in case he demanded one, and probabl.e that both before and after the issue of the execution he stated to plaintiff’s attorney that he did not desire an indemnifying bond, but would be satisfied if they would agree to see him through and save him harmless, which they did. Under those circumstances we cannot hold that the district court erred in refusing to permit the amendment.

2 Amercement of sheriff. Did the court err in holding the sheriff liable? We think not. Plere again we are met by conflicting testimony. Two witnesses testify to the effect, that on 13th Januaiy ig70? when the last execution was placed in his hands he stated that he had only paid out $290 of the proceeds of the sale, which would leave an ample amount to cover plaintiff’s execution, while the sheriff and another witness testify that some five hundred dollars were paid over to the attorney for Harrington about three hours before the execution reached him. Where the testimony is thus conflicting, we think the district court properly rested on the presumption that the sheriff obeyed the orders of the court, rather than the wishes of .the parties. The court dissolved the attachment, and ordered the money to be returned on the 14th. The duty of the officer was to obey that order. The presumption is that he did. And the district court might well rest upon this presumption in the face of conflicting testimony. We think it properly held that the- sheriff had moneys of the defendant in his possession which it was his duty to apply on the last execution when he received it. Of course, this brings the case within the very letter of the statute. There was a neglect to execute the writ.

It may be, and doubtless is true, as counsel claim, that this proceeding is severe and summary. It may be that it was hard oh the sheriff to be compelled to litigate this question, two hundred miles away from home, and upon written evidence. But the law has placed this power of amercement in the hands of the court, so that every sheriff throughout the state may remember that there is no safety in any departure from the strict letter of the law, or the very terms of any order of the court. And we cannot see in this case that the district court deprived the officer of any testimony he had or claimed to have, or failed to give him every opportunity for making a full defense to the motion. Upon the testimony thus presented we see, as we have stated, no error; and the order of the district court must be affirmed.

"Valentine, J., concurring. Horton, C. J., not sitting, having been of counsel in the case.