William F. Dolan & Co. v. Topping

| Kan. | Jan 15, 1893

The opinion of the court was delivered by

Johnston, J.:

This proceeding involves the question whether a person appointed as special sheriff by the clerk of the district court in a certain case, upon the mere statement by the plaintiff that he had looked with diligence but in vain to find the sheriff or his deputy to serve the process, may legally serve an order of attachment. J. W. Topping began an action in the district court of Ness county against M. L. Peters, and procured the issuance of an order of attachment, which was directed to I.' C. Cooper, as special sheriff. The following statement or application by an attorney of Topping’s was the only basis for the appointment:

“State oe Kansas, Ness County, ss.

“N. 8. Calhoun, Clerk of the District Court: I have looked in vain and with due diligence for sheriff or deputy to serve papers in case of J. W. Topping v. M. L. Peters. It is of great importance that the papers be served at once, and I ask that if sheriff be not found at once a special officer be appointed to serve said papers. I am attorney for plaintiff.

[Signed] E. C. Little.”

The application was verified. Indorsed upon the application was the following:

“ State oe Kansas, Ness County, ss.

“To Whom it may Concern: Eor good reasons shown, I have this day appointed I. C. Cooper to serve the summons and writ of attachment in the action now pending in the district court of Ness county, Kansas, wherein J. W. Topping is plaintiff and M. L. Peters is defendant.

“Witness my hand and the seal of this office, of this 19th day of October, 1887.

“ [seal.] N. S. Calhoun, Clerk of District Court.”

Cooper served the summons and order of attachment, seized the stock of goods belonging to Peters, locked up the store and turned the key over to Topping. Three days afterward, W. F. Dolan & Co., the Ridenour-Baker Grocery Company, and, later, the William B. Grimes Dry Goods Company, brought attachment actions against M. L. Peters, and the sheriff of the county, with orders of attachment, proceeded to the store building where the goods were, and obtained the key from Topping, when the sheriff unlocked the building and levied the attachments procured by the plaintiffs in error. The sheriff continued in the possession of the goods until they were turned over to a receiver appointed by the court. Afterward, the plaintiffs in error moved to discharge the attachment obtained by Topping, upon the grounds: First, that it was never served by the sheriff nor by any deputy or under-sheriff of the county, nor by anyone else legally authorized to serve the same; and, second, that if Cooper had any authority to serve the attachment, it was abandoned by Cooper and Topping, and the attachment lien was lost. These motions were overruled, and the plaintiffs in error come to this court complaining of the rulings.

If Cooper had no authority to serve the order of attachment issued in behalf of Topping, the motion to discharge should have been sustained. In § 701 of the civil code, it is provided that

“An order for a provisional remedy or any other process, in an action wherein the sheriff is a party or is interested, shall be directed to the coroner. If both of these officers are interested, the process shall be directed to and executed by a person appointed, ás provided in the next section.”

Section 702 provides that

“The court or judge, or the clerk, in the absence of the judge from the county, for good cause, may appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may be appointed on the application of the party obtaining the process or order, and the return must be verified by affidavit. He shall be entitled to the same fees allowed to the sheriff for similar services.”

In the act relating to counties and county officers, provision is made for the election of sheriff, and the giving of a bond by him for the faithful performance of his duties. He is authorized to appoint an undersheriff, and as many deputies as he may think proper, and he is held to be responsible on his official bond for the default or misconduct of his under-sheriff or deputies. He and his undersheriff and deputies are authorized and required to serve and execute all process issued or made by lawful authority and directed to the sheriff. (Gen. Stat. of 1889, ¶¶ 1759-1769.) Where there is no sheriff in a county, or when the sheriff is a party to a cause, or whenever affidavit is made that the sheriff will not, by reason of partiality, prejudice, consanguinity, or interest, faithfully perform his duties in any case commenced or about to be commenced, the clerk of the court directs the process to the coroner, who is required to execute it in the same manner as the sheriff might have done. (Gen. Stat. of 1889, ¶¶ 1777 — 1779.) In this case, neither the sheriff nor the coroner were parties to the cause nor interested in the action. The sheriff did not appoint Cooper, nor did he know anything of his appointment until after he had attempted to serve the process, nor has he ever ratified the same. As a matter of fact, the sheriff was present in the county during the day on which the appointment of Cooper was made, and was in his office at the county seat a portion of the day. Two or more of his deputies were in the county seat during the day and at the time when the appointment was made.

1- fff-TOidnp- ’ pointment by ~attacbment.

We think the showing made to the district clerk was insufficient, and the appointment made by him without authority. The general theory of our law is, that process shall be served by an officer who has given an under-taking as the statute requires for the protection 0 , A A °* rights of all persons who may be affected by his action. If the sheriff or any of his deputies, or the coroner, acting in his stead, wrongfully seizes property, the party injured by their wrongful acts may have recourse upon their official bonds. When there is no sheriff in the county, or when he is a party and is interested or otherwise disqualified to serve process in a particular cause, it is provided that the process shall be directed to the coroner, who is required to furnish a bond with like conditions as that given by the sheriff. When all of these officers are disqualified to act, which can rarely be the case, provision is made for the appointment of a special officer. It will be observed, however, that in such cases the appointment is to be made by the court or the judge, and the clerk is only permitted to exercise the authority of appointment in case of the absence of the judge from the county; and before he can act, good cause must be shown. It will be observed in the present case that good cause was not shown; for all that appears, the judge of the district court was in the county when the clerk undertook to appoint. It was not shown that the sheriff and his deputies were absent from the county or disqualified. Indeed, it appears that the sheriff and his deputies were qualified and available to serve the process which was directed to the special officer; and it farther appears that the special officer knew of their presence when he proceeded to serve the papers. It will hardly do to permit a party who may have some selfish purpose to subserve to wait until the sheriff and his deputies are out of sight, and then pass by the court or judge and obtain from the clerk the appointment of a special officer, who gives no bond and may be wholly irresponsible, to levy an attachment or seize and hold the property of others. Under the theory of the defendants in error, this practice would be permitted; but the statutes, fairly interpreted, do not justify either such theory or practice.

2. Attachment— ornee?0

The case of Mayers v. Wicks, 15 Ohio St. 548, is cited to show that an appointment may be made by the clerk for any reason other than those enumerated in the statutes. That case is not an authority, as it simply held that the provisions of the code did not take away from the court the inherent power to appoint special masters for the sale of real property. It is urged, that even if the clerk had no authority in law to make the appointment, yet, having made it, and the appointee having accepted and levied the writ, he thereby became clothed with all the power of a defacto officer, and his acts are therefore as binding as those of the regular sheriff or his deputy. There is no room for the application of the de facto theory in this case. No collateral attack is made on the authority of Cooper to serve the orders of attachment, but his right to serve the attachment is made in the action wherein the attachments were issued. There are no outside or innocent parties to be protected, but all who are interested or affected are proper parties to this proceeding, and the sufficiency of the attachment was a proper question for consideration. It appears that the sheriff was present, a qualified and available officer, and hence there was no room for a special or defacto officer.

8'to d°a?£S?ve There is some contention that the plaintiffs in error have no standing in court to contest the validity of an attachment in an action wherein they are not parties. Originally, they were not parties to the action of Topping v. Peters, but, being interested in the property, and in dis-charging it from the attachment wrongfully levied thereon, they were entitled to come into court and make the motions which they did. (Long v. Murphy, 27 Kan. 375" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/long-v-murphy-7885615?utm_source=webapp" opinion_id="7885615">27 Kas. 375; Grocery Co. v. Records, 40 id. 119; Civil Code, § 532.)

Limiting the decision to the facts in this case, we hold that Cooper had no authority to levy an attachment, and that the motions to discharge should have been sustained. For this purpose the judgment will be reversed, and the cause remanded to the district court.

All the Justices concurring.