Moore v. Burdge

• Decision Date: 01 March 1898
• Docket Number: 342
• Citation: 7 Kan.App. 80,52 P. 912
• Parties: HELEN J. MOORE v. D. N. BURDGE
• Court: Kansas Court of Appeals

52 P. 912

7 Kan.App. 80

HELEN J. MOORE v. D. N. BURDGE

No. 342

Court of Appeals of Kansas, Northern Department, Eastern Division

March 1, 1898

Opinion Filed April 8, 1898.

Error from Shawnee district court; Z. T. HAZEN, judge. Affirmed.

ERROR is brought from the ruling of the court below upon a motion to amerce the defendant in error, as sheriff, under paragraph 4570, General Statutes of 1889 (Gen. Stat. 1897, ch. 95 § 478). There is no dispute as to the essential facts in the case, and these may be summarized as follows: On the 3d day of May, 1894, an order of sale was issued by the clerk of the district court of Shawnee county, directed and delivered to the defendant in error as sheriff, commanding him to advertise and sell according to law the real estate therein described, and reciting the order of the court that said sale should be without appraisement, subject to a first lien of $ 1500. Except for this recital, the order of sale contained no command to sell subject to a first lien, or in accordance with the order of the court. The property was duly advertised for sale, except that no mention was made of the sale being subject to a lien, and was struck off at public auction to Mary R. Hunt for $ 500. This bid was repudiated by the bidder for the reason that it was made under a mistake of fact, in this, that the bidder supposed she was buying the full title and not subject to a prior lien. Payment of the sum bid was refused. The plaintiff in error thereupon requested the sheriff to enforce the bid, which he declined to attempt. The order of sale was returned to the clerk in due time, with a certificate of the sheriff showing what had been done under it.

Soon afterwards another order of sale was issued, and the property was duly sold to the same person who made the other bid, for fifty dollars, and this sale was examined and confirmed by the court. Afterwards the plaintiff in error requested the sheriff to proceed and collect from the bidder the difference between the amount of the first sale and the second sale which he refused to do. Upon this the proceedings to amerce were begun, and the court, after hearing the motion evidence, and argument of counsel, overruled the same. To reverse this ruling, these proceedings were instituted in this court.

Judgment affirmed.

E. G. Wilson, for plaintiff in error.

Vanee & Campbell, for defendant in error.

OPINION

WELLS, J.:

The plaintiff in error contends that the action of the defendant in error under the order of sale constituted a failure to execute the same, and that therefore the amercement should have been decreed, and refers us to the following authorities in support of such contention: Armstrong v. Grant and Prest, 7 Kan. 285; National Bank v. Franklin, 20 id. 264; Walker v. Braden, Sheriff, 34 id. 660 (9 P. 613); Gray v. Case, 51 Mo. 463; 2 Freeman on Executions, §§ 300, 301.

The case of Bank v. Franklin, supra, was an action for damages for delivering property in the hands of the officer to some third person so that the same became lost, and there were but three questions discussed in it: (1) Is the appraisement conclusive evidence of the value of the property? (2) Was there error in refusing to admit the order of sale in evidence? (3) Was a writ directed to the deputy sheriff void, or simply irregular?

Freeman on Executions, supra, contains nothing conclusive in support of the position of the plaintiff in error. The text (sec 301) says, "The officer is not authorized to sell on credit." This is followed by a note saying, "Yet it would hardly be expected that the bidders would attend with the necessary coin in their hands....