State v. Alexander
| Decision Date | 11 March 1911 |
| Docket Number | 17,014 |
| Parties | THE STATE OF KANSAS, Appellant, v. J. M. ALEXANDER, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1911.
Appeal from Cowley district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. APPEAL AND STAY BOND--Tolling the Statute of Limitation-- Statutory Lien--Intoxicating Liquors. An appeal from a judgment of conviction for the unlawful sale of intoxicating liquors, under an information filed in district court, the sentence imposing fine and imprisonment, does not, with the ordinary appeal or stay bond, operate to toll the statute of limitation as to an action by the state to enforce the statutory lien upon the premises where the liquors were sold.
2. APPEAL AND STAY BOND Issuance of Execution--Enforcement of Lien. Such appeal and bond suspend the right to issue execution against the convicted party, but do not suspend or impair the lien which upon conviction attaches to the property by virtue of section 4373 of the General Statutes of 1909 (Laws 1881, ch. 128, § 18).
Ed J Fleming, county attorney, for the appellant; Hackney & Lafferty, of counsel.
G. H. Buckman, S. C. Bloss, and F. C. Johnson, for the appellee.
December 30, 1905, one Chod Thomas was convicted of the unlawful sale of intoxicating liquor at lot 7, block 107, in the city of Winfield. He appealed, and the judgment of conviction was affirmed November 10, 1906 (The State v. Thomas, 74 Kan. 627), the mandate spread of record December 10, 1906, and execution issued against him October 3, 1907. On January 5, 1906, he filed an appeal bond, which recited that the trial court had ordered a stay of execution for ninety days, until he should file his transcript in the supreme court and perfect his appeal, and that upon giving bond in "the sum of $ and upon the filing of such transcript, and the perfecting of such appeal, and the giving of such bond, the execution of said judgment shall be further stayed until the final determination thereof in the supreme court." The original record on file with the clerk shows that on December 30, 1905, Thomas was given seventy-five days in which to prepare and file a bill of exceptions, and on his further application "the sentence imposed in this action is stayed for a period of ninety (90) days, upon said defendant giving bond in the sum of one thousand five hundred (1500) dollars, conditioned as is required by law." The bond given was for this sum. It would seem, therefore, that the only stay actually ordered was for ninety days from January 5, 1906.
On November 4, 1907, the appellant--the state of Kansas--filed a petition seeking to enforce the statutory lien upon the premises against the appellee, who was the alleged owner thereof. Service was had, or attempted, but such service was quashed December 21, 1908, on the motion of the appellee, who appeared specially for that purpose. On February 15, 1909, an amended petition was filed and service thereof was had by publication, the first publication being on February 18, 1909, the affidavit therefor being filed the same day. September 25, 1909, the appellee demurred to the amended petition, which demurrer was, on March 1, 1910, sustained, and the action dismissed. The state appeals.
It is insisted by the appellee that the cause of action on February 18, 1909, when the first publication was had, was barred by the statute of limitations, and that the amended petition failed to state facts sufficient to constitute a cause of action. His contention as to the first proposition is that the cause of action accrued on December 30, 1905, when Thomas was convicted, and that no action was really begun until February 18, 1909, which was more than three years from the date of conviction. Section 19 of the civil code provides that an action shall be deemed commenced as to each defendant at the date of the summons which is served on him, and, when service by publication is proper, at the date of the first publication; and that an attempt to commence an action shall be deemed equivalent to the commencement thereof, if followed by publication or service within sixty days. But such service or publication must be had before the limitation has run, in order to keep the cause of action alive. (Dunlap v. McFarland, Adm'r, 25 Kan. 488; Insurance Co. v. Stoffels, 48 Kan. 205; Wester v. Long, 63 Kan. 876, 66 P. 1032; Green v. McCracken, 64 Kan. 330, 67 P. 857.)
The lien attaches, and, ordinarily, the cause of action accrues at the date of conviction, and is barred in three years. ( The State v. Pfefferle, 33 Kan. 718, 7 P. 597; Durein v. Pontious, 34 Kan. 353, 8 P. 428; Snyder v. The State, 40 Kan. 542, 20 P. 122; Karcher v. The State, 80 Kan. 757, 104 P. 568.)
The appellant contends that the giving of the bond stayed all proceedings looking toward the enforcement of the judgment, both as to the appellee and as to Thomas, and that if there was no judgment to enforce against Thomas there was none to enforce against the appellee. The question thus presented is not free from difficulty. Was the judgment in abeyance for ninety days from the time of giving bond, as indicated by the order of the trial court, or was it suspended until affirmed? Or, more correctly speaking, was the lien of the judgment in abeyance and unenforceable during either of these periods so as to toll the statute of limitations, or was it from the date of conviction so continuously alive and vital as to keep the statute of limitations running?
The statute under which the appeal was taken (Crim. Code, § 287) provides that such appeal shall stay execution when the judgment is for a fine or fine and costs only; that in misdemeanor cases "the execution of the judgment" shall be stayed by order of the court or judge, upon the giving of a bond in such sum as shall be prescribed, that the stay shall be granted on serving the usual notice of appeal, and that the transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not otherwise; that if the transcript is filed within the prescribed time "then the stay shall continue to be in force until the case is finally disposed of in the supreme court, but not otherwise." It will be seen that on giving bond execution only is stayed, and that doubtless means the execution of the judgment against the person who has been convicted and is appealing. There is nothing in the statute indicating that the judgment or the lien thereof is either vacated or suspended during pendency of the appeal, execution only being stayed. This statute in language and effect is quite similar to section 586 of the civil code, which applies to civil actions and provides that an appeal shall not stay execution unless a certain bond be given. Hence a construction of the latter section should shed light as to the meaning of the former.
In The State v. Volmer, 6 Kan. 379, it was held that an appeal from a judgment of conviction, where the sentence was to pay a fine only, suspended the effect of the judgment until final judgment in the appellate court; but there it appears that the conviction had first been had in a justice court, and on appeal to the district court another conviction, the statute then providing, as it does now, that an appeal from conviction in a justice court should stay all further proceedings upon such judgment.
In Soper v. Medberry, 24 Kan. 128, the court said:
(p. 135.)
In City of Miltonvale v. Lanoue, 35 Kan. 603, 12 P. 12, it was held that, upon conviction before a police judge and afterward in district court for violation of a city ordinance, an appeal to the supreme court suspended the entire judgment, which was for fine and costs only. The court, in discharging the convicted person on habeas corpus, said:
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