Fisher v. Franklin
| Decision Date | 07 January 1888 |
| Parties | JOHN FISHER v. STEPHEN FRANKLIN |
| Court | Kansas Supreme Court |
Error from Shawnee District Court.
PROCEEDING to amerce the plaintiff in error, as sheriff of Sedgwick county. The facts are as follows: On June 5, 1884, Stephen Franklin recovered a judgment in the district court of Shawnee county against the Topeka Transportation and Omnibus Company, a corporation, for $ 1,000. On the 15th day of September the plaintiff in said action caused an execution to issue on said judgment, directed to the sheriff of Sedgwick county. On the 16th day of December the execution was returned by the sheriff, which return recited that he could find no property in his county belonging to the judgment debtor. In March, 1886, plaintiff filed his motion in the district court of Shawnee county to amerce the sheriff for his failure to return the execution within sixty days. At this hearing the sheriff was permitted to amend his return to show that he in person never received the execution until the 16th day of December; but the evidence in addition thereto showed (and it was not disputed) that the execution was received by the under-sheriff about the 16th day of September, and by him sought to be served, with the result as stated in the return. And it was also shown that during November the sheriff was absent from the state, and was so absent at the time the return ought to have been made. Upon the hearing in the district court, at the April Term, 1886 the motion was sustained, and judgment rendered against the sheriff for the amount of $ 1,000, together with $ 22.65 costs, and $ 5 additional costs, with 10 per cent. as statutory penalty added thereto. To review this judgment the defendant brings the case here.
Cause reversed, and remanded.
J. D McFarland, for plaintiff in error.
W. A S. Bird, and G. B. Andrews, for defendant in error.
OPINION
Where a proceeding is brought to amerce a sheriff for failure to return an execution to the court where the judgment upon which the execution was issued was rendered, such court has jurisdiction and may compel a return to its orders and executions, and punish by amercement for disobedience. ( Fay v. Edmiston, 28 Kan. 105; Ghost v. Hill, 11 Neb. 472; McNee v. Sewell, 14 id. 532.)
The only remaining question is, was there such a variance between the execution and the judgment upon which it was issued as will excuse the sheriff, or save him from amercement? The execution recited that a judgment was rendered against said transportation company for $ 1,000, and $ 22.65 costs, and $ 5 additional costs since the rendition of said judgment; and to support this execution plaintiff offered in evidence the judgment upon which it was issued, which judgment is as follows:
"It is therefore considered, ordered and adjudged by the court, that said plaintiff do have and recover of and from said defendant the sum of $ 1,000, so found due as aforesaid by the verdict of a jury in this case, together with costs of suit, taxed at $ ."
To the introduction of this judgment the defendant objected, for the reason that there was a variance between the judgment and the recitals in the execution; which objection was overruled, and defendant excepted. If this variance will not excuse the sheriff for not having returned the execution within sixty days, as required by law, then the judgment of the court must be affirmed; for the law gives no discretion to the court, and the defendant has shown no other reason why the execution was not returned that would excuse him. The statute under which this motion was made is of a penal character, and like all other penal proceedings, strict compliance with the requirements of law must be observed in its enforcement; and when a person desires to avail himself of this proceeding he cannot complain if he is required to strictly conform to the letter of the law, for when it is enforced it works in many instances great hardship to the officer who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others; and while as before stated, the court has no discretion in enforcing such proceedings, yet it ought to carefully guard against allowing amercements except in cases where the proceedings have been regularly and strictly...
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...Am. and Eng. Ency. of Law, 689; Alsup v. Ross, 24 Mo. 283; Duncan v. Drakeley, 10 Ohio 45; Conkling v. Parker, 10 Ohio St. 28; Fisher v. Franklin, 38 Kan. 251; Riess v. Rice, 1 Kan.App. 311; 22 Am. and Eng. Law, 654; Steam Engine Co. v. Hubbard, 101 U.S. 188. Percy Werner and Everett W. Pat......
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... ... The ... court, in its opinion in the above case, among other cases, ... cites as authority the case of Fisher v. Franklin, ... 38 Kan. 251, 16 P. 341, in which case judgment was rendered ... for $1,000 and costs taxed at $ ------; the execution ... ...
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...issued thereon, it will be seen that there is a variance between the execution and, the judgment; and in the case of Fisher v. Franklin, 38 Kan. 251, 16 P. 341, it was held that a variance between an execution and a judgment was fatal on an action to amerce the sheriff for failure to levy t......
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