William Deering & Co. v. Burke
| Decision Date | 31 October 1898 |
| Docket Number | 11,278 - (43) |
| Citation | 76 N.W. 1020,74 Minn. 80 |
| Parties | WILLIAM DEERING & COMPANY v. THOMAS F. BURKE and Another |
| Court | Minnesota Supreme Court |
Appeal by William Deering & Co. from an order of the district court for Hennepin county, Simpson, J., denying its motion for an order requiring A. E. Randall, sheriff of Big Stone county to pay to it, or its attorney, the amount of the judgment entered in its favor against defendant Thomas F. Burke ($108.42), with interest and costs thereon, and the costs of the proceeding. Affirmed.
The counter affidavit of the sheriff mentioned in the opinion set up that, at the time the first execution was delivered to him, both the sheriff and all his deputies were necessarily in attendance upon the sessions of the district court at Ortonville, and the plaintiff's agent was informed that neither the sheriff nor any deputy could leave Ortonville to make the levy. That a special deputy to make the levy would be appointed, if such appointment was necessary, or the levy would be made immediately after the adjournment of the court. That the agent said he preferred to have the sheriff wait until the term of court was over. That within four days after the execution was delivered to the sheriff, he went to the premises of the defendant Burke, 19 miles from Ortonville and found the grain in question had been removed from the premises.
Sheriff -- Failure to Pay Over Money -- G.S. 1894, §§ 788, 789 -- Hull v. Chapel Followed -- Disputed Liability.
In a summary proceeding against a sheriff, under the provisions of G.S. 1894, §§ 788, 789, the rule laid down in Hull v. Chapel, 71 Minn. 408, is applied; and it is held that the fact of the sheriff's duty or liability in the premises was fairly and reasonably open to dispute on the showing made, and therefore that he was entitled to have the question of his official misconduct or neglect tried in a civil action.
C. A. Fosnes, for appellant.
F. L. Cliff, for respondent.
In Hull v. Chapel, 71 Minn. 408, 74 N.W. 156, it was held that G.S. 1894, § 788, which provides for proceeding against a sheriff in a summary manner by order to show cause for failure to pay over money which he has received by virtue of his office, as for a contempt, being penal, was not designed to embrace cases where the fact of the sheriff's duty or liability is fairly and reasonably open to dispute. It only applies when it is the sheriff's plain and undisputed duty to pay, and his neglect wilful. If there is a well-grounded doubt of the sheriff's duty, or his liability, or whether the money so received by him has...
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