7 S.D. 179 | S.D. | 1895
Appeal from an order' of the circuit court of Minnehaha county refusing to vacate a previous order of the judge of said court discharging respondent from custody on 7uu beas corpus. The facts are undisputed, and are these: The re^ spondent, as plaintiff, sued Sundback, in justice court, for a wrongful taking and conversion of personal property, and recovered judgment. Sundback appealed to the county court, where he prevailed, and obtained judgment against respondent, "Winton, for costs. Execution having been returned unsatisfied, the county court, upon a showing and motion, ordered execution against the body of Winton. Having been taken into the custody of appellant, as sheriff, thereunder, he applied to the judge of the circuit court for a writ of habeas corpus. Upon hearing, the judge ordered his release. The circuit court refused to vacate the judge’s order, and from such order of the court the sheriff appeals.
This action was for the recovery of damages for the wrongful taking and conversion of personal property. In such an. action the defendant may be arrested. Comp. Laws, section 4945.. If the action be one in which the defendant might have been .so - arrested, then “an execution against the person of the judgment debtor” may issue upon order of-the court. Comp. Laws, section 5115. Under the same statute in New York it has been repeatedly-held that in such an action, if the plaintiff fails, and judgment for costs goes against him, he is subject to execution against the-body.. This was distinctly ruled in Miller v. Scherder, 2 N. Y. 264; Parce v. Halbart, 1 How. Pr. 235; Parker v. Spear, 62 How. Pr. 394; Kloppenberg v. Neefus, 4 Sandf. 655; Philbrook v. Kellogg, 21 Hun. 238. Respondent concedes that these authorities would be pertinent, and probably controlling, but for the fact that this action was commenced in justice court, and got to the county court only on appeal by the defendant; and that as no order of arrest could have been made in the justice court, and that as the case, as tried in the county court, was the same case as tried in the justice court, the power of the appellate court in this respect must be determined by the power of the justice court in which the action