Merwin v. Hawker

• Decision Date: 03 January 1884
• Citation: 1 P. 640,31 Kan. 222
• Parties: ALMIRA MERWIN v. JOHN HAWKER
• Court: Kansas Supreme Court

1 P. 640

31 Kan. 222

ALMIRA MERWIN v. JOHN HAWKER

Supreme Court of Kansas

January 3, 1884

Error from Saline District Court.

EJECTMENT brought by Merwin against Hawker. Trial by the court upon an agreed statement of facts, at the May Term, 1883, and judgment rendered for the defendant. The plaintiff brings the case here. The opinion contains a sufficient statement of the facts.

Judgment affirmed.

Garver & Bond, for plaintiff in error.

John Foster, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action of ejectment, brought by plaintiff in error plaintiff below, to recover the possession of the northeast quarter of the northwest quarter of section thirty-five, township fourteen, range four, in Saline county. The case was tried by the court without a jury, upon an agreed statement of facts, and judgment rendered thereon in favor of defendant. The facts are these: In 1874, C. W. Bates owned the northwest quarter of said section thirty-five. In March of that year a suit was commenced against him in the district court of Saline county, and being a non-resident, jurisdiction was obtained by attachment of said quarter-section, and service made by publication. No other service was had, and no appearance was made by said Bates in the action. When attached, the quarter-section was appraised at $ 480, and the appraisement duly returned with the order of attachment. In May, 1874, a judgment was rendered in favor of the plaintiff and against said Bates for the sum of $ 514.70 and costs, and the sale of the attached property. The journal entry of judgment reads as follows:

"It is therefore considered by the court, that the said plaintiff recover of the said Charles W. Bates, principal, and John F. Randolph, surety, the said sum of five hundred and fourteen dollars and seventy cents, and also his costs in and about said suit in his behalf expended, taxed at $ ; and on motion of the said William F. Parker, by Spivey and Wildman, his attorneys, it is ordered that the said sheriff proceed as upon execution to advertise and sell so much of the real property heretofore attached in this action, now in his hands remaining, as will satisfy the said plaintiff of his aforesaid judgment and costs."

It will be seen that in this journal entry the amount of costs is not carried out. What entries were made on the judgment or appearance docket in respect to the costs is not shown. (See Code, §§ 703, 704, 706.) In September, 1874, Bates conveyed the land to the ancestor of plaintiff. In March, 1877, no prior writ having issued, one August Bondi, who had been the clerk of the court at the time of the abovementioned proceedings, and who had costs due him in said case, ordered the then clerk, Nels Peterson, to issue an execution for the collection of the costs therein. An execution was accordingly issued. This execution, after reciting the judgment for costs, contained this command:

"These are therefore to command you, that of the goods and chattels of the said Charles W. Bates and John F. Randolph, you cause to be made the $ 16.90, debt, damages and cost aforesaid; and for want of goods and chattels you cause the same to be made out of the lands and tenements of the said Charles W. Bates and John F. Randolph, to wit, the real property heretofore attached in this action, to wit, the northwest quarter of section thirty-five," etc.

Under this execution the sheriff levied upon the north half of the northwest quarter of said section 35, caused it to be appraised in two separate tracts, to wit, the northeast quarter of said northwest quarter of section 35 at $ 200, and the northwest quarter thereof at $ 160. The property thus levied upon was offered for sale, but not sold for want of bidders. Thereafter, in July, 1877, a second execution was issued for the same costs, and under such execution the property in controversy was sold to one J. M. Greeley. The sale was confirmed by the court, and thereafter Greeley conveyed to defendant. If by these proceedings the title was transferred and vested in defendant, the judgment was right; otherwise the plaintiff was entitled to a recovery.

Upon these facts counsel for plaintiff states that two questions are presented for consideration, namely: First, the judgment not being a personal one, could execution be issued and a levy and sale be made under it, which would convey the title to real estate which was vested in the judgment debtor at date of the judgment, but not at the time of the ...