Winton v. Knott

• Decision Date: 15 June 1895
• Citation: 63 N.W. 783,7 S.D. 179
• Parties: WINTON v. KNOTT, Sheriff.
• Court: South Dakota Supreme Court

7 S.D. 179

63 N.W. 783

WINTON

v.KNOTT, Sheriff.

Supreme Court of South Dakota.

June 15, 1895.

Syllabus by the Court.

1. In an action in which the defendant might have been arrested under section 4945, Comp. Laws, execution may issue “against the person of the judgment debtor.” Comp. Laws, § 5115.

2. If, in such action, the judgment is against the plaintiff for costs, he becomes the “judgment debtor,” and is subject to “execution against the person.”

3. Where the action was originally commenced in justice court, where the plaintiff recovered judgment, the defendant appealed, and the action was tried anew in the county court, the judgment there rendered is the judgment of the county court, and “may be enforced in the same manner as judgments in actions commenced therein.” Comp. Laws, § 6136.

4. In such case execution may issue against the person of the judgment debtor.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Application in habeas corpus by David Winton for release from the custody of George A. Knott, sheriff. Applicant was ordered discharged, and from an order refusing to vacate the order of discharge defendant appeals. Reversed.Joe Kirby and D. R. Bailey, for appellant. W. A. Wilkes and Park Davis, for respondent.

KELLAM, J.

Appeal from an order of the circuit court of Minnehaha county refusing to vacate a previous order of the judge of said court discharging respondent from custody on habeas corpus. The facts are undisputed, and are these: The respondent, as plaintiff, sued Sundback, in justice court, for a wrongful taking and conversion of personal property, and recovered judgment. Sundback appealed to the county court, where he prevailed, and obtained judgment against respondent, Winton, for costs. Execution having been returned unsatisfied, the county court, upon a showing and motion, ordered execution against the body of Winton. Having been taken into the custody of appellant, as sheriff, thereunder, he applied to the judge of the circuit court for a writ of habeas corpus. Upon hearing, the judge ordered his release. The circuit court refused to vacate the judge's order, and from such order of the court the sheriff appeals.

Respondent contends that the first or original order discharging respondent was a court order, and the one from which the appeal should have been taken, and that, more than 60 days having elapsed, this appeal cannot be used for a review of that order. We think otherwise. Section 7839, Comp. Laws, authorizes either the court or judge to issue the writ of habeas corpus. If issued by the court, it shall be “under the seal of the court”; if by the judge, “under the hand of the judge.” In this case, as shown by the abstract, the petition was presented to “the judge.” It required the prisoner to be brought before “the judge,” and was signed simply by “the judge,” and the order of release is also signed by the “judge” as such. Upon these facts it seems plain that the writ was issued and heard by the judge. The releasing order having been affirmed by the court, the latter order was a proper subject of appeal.

This action was for the recovery of damages for the wrongful taking and conversion of personal property. In such an action the defendant may be arrested. Comp. Laws, § 4945. If the action be one in which the defendant might have been so arrested, then “an execution against the person of the judgment debtor” may issue upon order of the court. Comp. Laws, § 5115. Under the same statute in New York it has been repeatedly held that in such an action, if the plaintiff fails, and judgment for costs goes against him, he is subject to execution against the body. This was distinctly ruled in Miller v. Scherder, 2 N. Y. 264;Parce v. Halbert, 1 How. Pr. 235;Parker v. Spear, 62 How. Pr. 394; Kloppenberg v. Neefus, 4 Sandf. 655; Philbrook v. Kellogg, 21 Hun, 238. Respondent concedes that these authorities would be...