Bostwick v. Benedict

• Decision Date: 09 December 1893
• Citation: 4 S.D. 414,57 N.W. 78
• Parties: BOSTWICK et al, Plaintiff and respondent, v. BENEDICT, Sheriff. Defendant and appellant.
• Court: South Dakota Supreme Court

4 S.D. 414

57 N.W. 78

BOSTWICK et al, Plaintiff and respondent, v. BENEDICT,

Sheriff.

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Grant County, SD

Hon. J. O. Andrews, Judge

Reversed

Taubman & Potter and Little & Nunn

Attorneys for appellants.

R. B. Smithers and John W. Bell

Attorneys for respondents.

Opinion filed Dec. 9, 1893

KELLAM, J.

This is an appeal from an order of the circuit court of Grant county amercing appellant, as sheriff, for nonpayment of moneys alleged to have been collected by him on execution. The facts are undisputed, and are as follows: In the circuit court of Roberts county, respondents Bostwick obtained a judgment against one Knight, and caused a transcript to be filed in the office of the clerk of the circuit court for Grant county, and thereupon caused execution to be issued by the clerk of the circuit court of said Grant county to the sheriff of such county. That, prior to the issuance of said execution, one Dewees had obtained judgment in said Grant county circuit court against respondents Bostwick. That while said first execution was in the hands of the sheriff as aforesaid, and before the same was collected, he received, as such sheriff, for collection, an execution issued upon the judgment of Dewees against the respondents Bostwick. While so holding both executions, Knight, the defendant in the first, paid to the sheriff the amount due thereon, and directed him to apply the same on the judgment and execution of Dewees against respondents Bostwick; and he did so, paying the same over to the plaintiff, Dewees. Respondents Bostwick then made demand for the amount so recovered from Knight, and, payment being refused, brought these proceedings, under Section 5167, Comp. Laws, to amerce the sheriff, in the circuit court of Roberts county. Upon these facts the circuit court made an order requiring the sheriff to immediately pay over to the plaintiffs Bostwick, these respondents, the amount so received from Knight on the execution against him, together with ten per cent thereon as damages, and from such order this appeal is taken.

Section 5104, Comp. Laws, provides that a transcript of the original docket of a judgment may be taken from the county in which the judgment was rendered, and filed in the office of the clerk of the circuit court of any other county, and that it shall then be a lien upon any real estate of the judgment debtor in said county, but this does not authorize the clerk of such county to issue execution thereon. Execution may be issued to the sheriff of any county where the judgment is docketed, (Section 5114,) but it must be issued from the county where the judgment was rendered. This is the evident plan of our statute. In some states the statute expressly authorizes an execution to issue from any county in which a transcript is filed, but ours does not, and the power does not exist without statutory authority. Freem. Ex'ns, § 14. The object of our statute in allowing the filing of a transcript in another county is, as stated in said Section 5104, to make the judgment a lien upon the debtor’s veal estate in such county. It confers no authority upon the clerk of such county to issue execution, and any attempt to do so is unauthorized, and the execution is void. It is so held in states having statutory provisions similar to ours. See Seaton v. Hamilton, 10 Iowa 394; Furman v. Dewell, 35 Iowa, 170; Shattuck v. Cox, 97 Ind. 242. In this case the execution issued by the clerk of the Grant county circuit court on the transcript from Roberts county was void. It recited on its face that it was issued on such transcript, and the sheriff of Grant county, the appellant here, might have declined to accept it or operate under it, but he did not. He treated it as a valid execution, and proceeded under it. Having done so, and collected money upon it, it is very doubtful if he is in position to assert and take advantage of its invalidity in this proceeding.

But, assuming that he is thus estopped, we think he is fully protected by Section 5175, Comp. Laws. That section provides that, “after the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid.” We are unable to perceive why all the conditions named in said section to...