Pracht v. Pister

• Court: Kansas Supreme Court
• Writing for the Court: BREWER, J.:
• Citation: Pracht v. Pister, 30 Kan. 568, 1 P. 638 (Kan. 1883)
• Decision Date: 01 July 1883
• Parties: FREDERICK PRACHT v. JOHN PISTER

1 P. 638

30 Kan. 568

FREDERICK PRACHT v. JOHN PISTER

Supreme Court of Kansas

July 1, 1883

Error from Marion District Court.

ACTION by Pracht against Pister, for the possession of certain wheat. Trial at the November Term, 1882, and verdict and judgment for defendant. Plaintiff brings the judgment here for review. The opinion states the case.

Judgment reversed and case remanded.

Doster & Bogle, for plaintiff in error:

It is apparent from an inspection of the paper claimed by plaintiff in error to be in substance and effect an execution, that it contains every element that is necessary or essential to that writ. The record in the case discloses that every prerequisite of an execution existed prior to the issuance of this paper by the justice.

The right to an execution at the time this paper was issued, must be conceded. (Freeman on Executions, § 38.) Instead of requiring unusual strictness from justices of the peace their writs will be granted unusual indulgence. (Fr. on Ex § 38.)

This paper possesses all the statutory elements of an execution. It is directed to a constable of the county; it is subscribed by the justice by whom the judgment was rendered; it bears date the day of its delivery to the officer to be executed it intelligibly refers to the judgment by stating the name of the justice before whom, and of the county and township where, and the time when, it was rendered, and the amount of the judgment. It requires the constable substantially to collect the amount of the judgment of the personal property of the debtor, and to pay the same to the party entitled thereto; and it directs the officer to make return of the execution, and a certificate thereon showing the manner in which he has executed the same, in thirty days from the time of his receipt thereof. (Comp. Laws 1879, ch. 81, § 139.)

Even though the paper should be regarded as a special execution, issued upon a general judgment, that would not make the sale void. "The order to sell special property is authorized by the general and unlimited order that an execution shall issue. This authority for a general execution necessarily includes a warrant for one of a more limited or special character, as a minor warrant is obviously comprised under the greater." (Swiggart v. Harber, 4 Scam. 364; Rockwell v. Cuthbert, 21 Ill. 279; Corriell v. Doolittle, 2 G. Greene, 4 Iowa 385; Paine v. Mooreland, 15 Ohio, 436.)

The court having undisputed jurisdiction of the defendant and of the subject-matter of the suit, and the defendant being in no way whatever prejudiced, it cannot be claimed that the sale was void. The sale not being void, it cannot be attacked collaterally. (Cooley v. Brayton, 16 Iowa 10, and cases there cited.)

Cases where the writ is simply erroneous and irregular, are to be distinguished from cases where it is void. (Peter v. Haskell, 11 Me. 177.)

The sale will not be set aside for a mere irregularity, especially when no one has been prejudiced.

J. Hudson Morse, for defendant in error:

For the sake of argument call the paper an execution, and still plaintiff had no title to the property, and the judgment of the court below must be affirmed. If this paper was an execution, it had no effect upon the property of defendant until a levy was made by the person holding it. Until a levy was made, the officer was vested with no general or special property in defendant's goods, (Freeman on Executions, § 268,) and hence he could not convey or sell what he had not. In order to give him such a vested interest as would enable him to sell, a levy was indispensable. (14 Wis. 202; Freeman on Executions, § 274; Armstrong v. Grant, 7 Kan. 294.) To make this levy there are certain prerequisites absolutely indispensable. (18 Wis. 408; Freeman on Executions, §§ 254, 260, 262, 263, and cases there cited.) Without such a levy any sale, or attempt to sell, is absolutely void, and the officer a trespasser. (Freeman on Executions, § 260.) No such levy was made, nor was any levy whatever made or attempted to be made, if we take the position claimed by plaintiff and call this paper an execution.

The only levy that was at any time made upon the property sought to be recovered in this action, and which was attempted to be sold under said paper, was made under the attachment order; and the only return of a levy was made on the back of the attachment order. The case-made does not pretend to show any other or further levy, but on the contrary it appears by the case-made that the next succeeding step taken by the officer, after the issuance of this pretended execution, was the advertisement of the specific property long theretofore attached. Nor can plaintiff avoid the want of a levy by contending that a prior levy had been made, because if such be contended for then there was no execution, and the paper is just what it purports to be, and void because its inception was without authority of law.

BREWER, J. All the Justices concurring.

OPINION

BREWER, J.:

On November 21, 1881, the firm of Pracht, Schultz & Co. recovered a judgment before a justice of the peace against the defendant for the sum of $ 260.20. Of the validity of this judgment there is no question. In fact, the judgment was rendered upon the personal admission of the defendant. Thereafter, without issuing execution and for some inexplicable reason, the plaintiffs filed an affidavit for an order of attachment. The order of attachment was issued and levied upon certain personal property, to wit, fifty acres of growing wheat; and upon the determination of this attachment proceeding an order of sale was issued commanding the constable to satisfy the judgment by a sale of the property attached. Under this writ it was sold to one of the plaintiffs in the judgment, and in the presence of and without any objection from the defendant.

The...