Barnett v. Schad

• Decision Date: 07 April 1906
• Docket Number: 14,549
• Citation: 85 P. 411,73 Kan. 414
• Parties: ALICE E. BARNETT v. HENRY SCHAD, as Sheriff, etc
• Court: Kansas Supreme Court

85 P. 411

73 Kan. 414

ALICE E. BARNETT v. HENRY SCHAD, as Sheriff, etc

No. 14,549

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

STATEMENT.

THIS suit was brought by the plaintiff in error to enjoin the defendant in error, as sheriff of Sedgwick county, from selling land, which she alleged was her property, under an execution issued against another person. At the commencement of the suit a temporary injunction was allowed by the judge of the district court. Afterward the court, on motion of the defendant, issued an order dissolving such temporary injunction; and the plaintiff brings the case here for review of such order of dissolution.

Reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION -- Commencement of Suit -- Procedure. Where the statutes authorize the clerk of a district court to do a certain act, and authorize the judge of the same court to do another act, and the authority of each to act is dependent upon the previous action of the other, either may act first, and the two acts will be regarded in law as done at the same time, provided the acts follow one another within such reasonable time that, under the particular circumstances of the case, the difference in time may be regarded as inconsiderable.

2. PARTIES--Suit to Enjoin Sheriff--Judgment Creditor Not a Necessary Party. In a suit against a sheriff to enjoin him, as such officer, from selling real estate upon which he has levied an execution issued on a money judgment, the judgment creditor is a proper, but not a necessary, party defendant. The sheriff, in such a case, may make all defenses which he and the judgment creditor could make, either jointly or severally. (Taylor v. Hosick, Adm'r, &c., 13 Kan. 518, 526.)

Holmes & Yankey, for plaintiff in error.

I. P. Campbell & Son, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.

Six grounds were set forth in the motion to dissolve the temporary injunction, the first, second, third and sixth of which relate to the failure to issue a formal order addressed to the defendant and under the seal of the court. The temporary order was allowed at the time of commencing the suit, and "injunction allowed" was indorsed on the summons that was issued and served. (Gen. Stat. 1901, § 4690.) But it is urged in the defendant's brief that the words "injunction allowed" were not indorsed by the clerk but were written on the summons by plaintiff's attorney. In the absence of any evidence on the subject it must be presumed the indorsement was made by the clerk. A forgery will not be presumed. It follows that as to these grounds for dissolution the motion should have been denied.

The fourth and fifth grounds of the motion were really one, which was that the verified petition was not filed with the clerk before it was presented to the judge for the allowance of the order. The principal controversy on the hearing seems to have been whether the order was made by the judge immediately before the filing of the petition or immediately thereafter. Much evidence pro and con was introduced, and we assume from the ruling of the court that it found this issue in favor of the defendant. It is not within our province to weigh this evidence, and we disregard it as immaterial, except so far only as there is no conflict.

The uncontroverted evidence shows that the plaintiff with her attorney appeared in the clerk's office about the time the court opened in the adjoining room of the court-house, and, the clerk being absent, the attorney presented the petition to the deputy clerk and requested him to swear the plaintiff to the same, which he did; she subscribed her name to the oath, and he affixed his jurat and seal. The attorney either did or did not request the deputy to file the paper, but immediately took the same to the judge and requested him to allow the order, which was done; and immediately thereafter the attorney returned the petition to the deputy clerk, when the papers were marked filed, including a praecipe for a summons. An injunction bond was then filed, security for costs given, and the summons issued and indorsed as before stated.

The statute (Gen. Stat. 1901, § 4686) provides that "the injunction may be granted at the time of commencing the action," and section 4487 provides that "a civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon." If the petition is used as the...