Yount v. Hoover

Citation95 Kan. 752,149 P. 408
Decision Date12 June 1915
Docket Number19,533
PartiesORAL R. YOUNT, Appellee, v. L. W. HOOVER, as Sheriff, etc., Appellant
CourtUnited States State Supreme Court of Kansas

Decided. January, 1915.

Appeal from Cowley district court; CARROLL L. SWARTS, judge.

Judgment Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Necessary Parties--Enjoining Execution Sale. The judgment creditor is not a necessary party in an action to enjoin a sheriff from selling the property of a third person under an execution issued on a judgment in an action to which such third person was not a party.

2. SAME--Proper Party to Enjoin Execution Sale. An action can be maintained by the owner of real property to enjoin its sale under an execution issued on a judgment against another person in an action to which the owner of the property was not a party.

C. T Atkinson, of Arkansas City, for the appellant.

L. C. Brown, of Arkansas City, for the appellee.

OPINION

MARSHALL, J.

This is an action to enjoin the sheriff of Cowley county, Kansas, from selling real property under an execution. Judgment was rendered for the plaintiff. The defendant appeals.

The petition, omitting formal parts, alleges:

"That in a certain action pending in the Justice Court of D. D. Light, a Justice of the Peace in and for Bolton Township, Cowley County, Kansas, wherein C. E. Cummins was plaintiff and Louisa F. Yount was defendant, the said plaintiff recovered judgment against said defendant, Louisa F. Yount, and the same was abstracted to this court by the plaintiff. That said plaintiff caused an execution to be issued on said judgment and the same was placed in the hands of the defendant, and said defendant levied said execution on the east half of the southeast quarter of section three (3), in Township Thirty-four (34), Range Three (3) East, in Cowley County, Kansas, and has advertised said premises for sale and is about to sell the same as the property of the said Louisa F. Yount.

"That this plaintiff is the owner in fee simple of the above mentioned and described premises, and was such owner long prior to the commencement of the suit upon which said execution is based and under and by virtue of which said defendant is about to sell said premises.

"That by reason of the premises, the plaintiff will be disturbed in the peaceable possession and occupancy of said premises, and that by a sale of said premises he will further suffer irreparable injury and damage, for which he has no adequate remedy at law, and the sale of said premises under said execution will incumber the title to said real estate."

The defendant filed a general demurrer, which was overruled. Judgment was rendered for the plaintiff on the demurrer.

(1) The defendant contends that the demurrer should have been sustained because the judgment creditor was not a party to the suit.

"A final injunction will not be granted until all the parties whose legal rights are to be directly affected by it are made parties to the action." (State of Kansas v. Anderson, 5 Kan. 90, syl. P1; Gilmore v. Fox, 10 Kan. 509, 512; Hays, Treasurer, v. Hill, 17 Kan. 360; Voss v. School District, 18 Kan. 467, 471; Carpenter, Treas., v. Hindman, 32 Kan. 601, 607, 5 P. 165; A. T. & S. F. Rld. Co. v. Wilhelm, Treas., 33 Kan. 206, 6 P. 273; McCarthy v. Marsh, 41 Kan. 17, 20 P. 479; City of Anthony v. The State, ex rel., 49 Kan. 246, 30 P. 488; U. T. Rld. Co. v. Rld. Comm'rs, 52 Kan. 680, 35 P. 224; Jeffries-BaSom v. Nation, 63 Kan. 247, 65 P. 226; Shearer v. Murphy, 63 Kan. 537, 66 P. 240.)

In a suit to enjoin the state treasurer from paying over the proceeds of the sale of land granted to railroad companies, the companies are necessary parties. (State of Kansas v. Anderson, supra.) The city of Emporia is a necessary party in an action to enjoin the county clerk and the county treasurer from collecting an improvement tax levied by the city. (Gilmore v. Fox, supra.) A school district is a necessary party in an action to enjoin a county treasurer from collecting a tax levied to pay interest on certain bonds of the district and to create a sinking fund for the payment of the bond (Hays, Treasurer, v. Hill, supra), or to enjoin the collection of school taxes (Voss v. School District, supra), or to enjoin the collection of a library tax (A. T. & S. F. Rld. Co. v. Wilhelm, Treas., supra). In an action to enjoin the collection of a tax levied to pay interest on refunding county bonds, the holders of the bonds are the real parties in interest and are proper parties. (Carpenter, Treas., v. Hindman, supra.) An action to enjoin the collection of a tax levied to pay interest on city bonds and to have the bonds declared null and void, can not be maintained without making the bondholders parties. (City of Anthony v. The State, ex rel., supra.) The board of county commissioners is a necessary party in an action to enjoin the collection of a tax warrant (Jeffries-BaSom v. Nation, supra); and in an action to enjoin the collection of taxes due the county or the political subdivisions of which the county is the representative in matters of tax collection (Shearer v. Murphy, supra). The holder of a claim assumed by the state under chapter 180 of the Laws of 1887 (see Gen. Stat. 1909, § 8699b) is a necessary party in an action to enjoin the state auditor from issuing a certificate of indebtedness to the holder under that act. (McCarthy v. Marsh, supra.) The board of railroad commissioners granted to one railroad the right to cross two other railroads. The two railroads afterwards made an application for a rehearing by the board. The first road sought to enjoin the board from rehearing the matter. It was held that the roads desiring the rehearing were necessary parties. (U. T. Rld. Co. v. Rld. Comm'rs, supra.)

The above are illustrations of the principle relied on by the defendant in this action. Does this principle apply in the present case? What legal right has the judgment creditor in the real property levied on, that will be directly affected by this action? He does not own the land or any part thereof, nor have any interest therein or any lien thereon, nor has he any right, under the petition, to have execution levied on this land.

When the defendant levied the execution in his hands on the property of a third person, he became liable to the owner of the property in such action as might be brought to protect that owner's rights. (Cook v. Higgins, 66 Kan. 762, 71 P. 259. See, also, 35 Cyc. 1652.)

"In an action against a sheriff for the recovery of property taken under an execution and replevied by the plaintiff in such action, the sheriff is not only the actual but the real party defendant where the judgment-creditor makes no application to be made defendant and is not substituted as the defendant." (Hoisington, Sheriff, v. Brakey, 31 Kan. 560, 3 P. 353, syl. P 1, 3 P. 353. See, also, Frankhouser v. Cannon, 50 Kan. 621, 622, 32 P. 379, and McDowell v. Gibson, 58 Kan. 607, 610, 50 P. 870.)

"In a suit against a sheriff to enjoin him, as such officer, from selling real estate upon which he has levied an execution issued on a money judgment, the judgment creditor is a proper, but not a necessary, party defendant. The sheriff, in such a case, may make all defenses which he and the judgment creditor could make, either jointly or severally." (Barnett v. Schad, 73 Kan. 414, 85 P. 411, syl. P 2, 85 P. 411, 91 P. 539. See, also, McGill v. Sutton, 67 Kan. 234, 72 P. 853.)

Incidentally, we may say that by demurrer is not the proper way to present a defect of parties under the code of civil procedure as it now stands. That is not one of the reasons for which a demurrer may be filed. (Civ. Code, § 93.)

(2) The defendant next contends that an injunction ought not to be allowed where the party has a plain and adequate remedy by the ordinary course of procedure, and cites Shelden v. Motter, decided by the court of appeals of this state, and published in 53 P. 89, where that court said:

"Our supreme court has frequently said that an injunction ought not to be allowed where the party has a plain and adequate remedy by the ordinary course of procedure. If the order of sale was issued without authority of law, the district judge had abundant authority to direct that the writ be quashed. The district court had perfect control of the order of sale issued by it. If the facts upon the hearing required the court to quash the writ, and it refused, a proceeding in error afforded an adequate remedy for the plaintiff. So that, measured by the former adjudications of the supreme court, the court rightfully refused the injunction for this reason." (p. 90.)

In Shelden v. Motter the action was to enjoin the sheriff from selling under an order of sale, while in the case at bar the action is to enjoin the sheriff from selling under an execution. There is a difference between the writs. One orders the sale of specific property; the other authorizes, first, the sale of goods and chattels, and second, of lands and tenements. This court, in Gale v. Sleeper, 70 Kan. 806, 79 P. 648, said:

"The privilege of one whose real property is levied upon under an execution against another to make a motion in the case in which the execution was issued to release the property from such levy does not afford him such an adequate remedy at law as to cut off any right he would otherwise have to maintain injunction against the sale of the property." (Syl.)

In this state actions have been maintained to enjoin the sale of property under executions, where the property levied on was not subject to sale to satisfy the judgments on which the executions were issued. (Plumb v. Bay, 18 Kan. 415; Allen v. Dodson, Sheriff, 39 Kan. 220, 17 P. 667; Ryan v. Parris, 48 Kan. 765, 30 P. 172; Bowling v. Garrett,...

To continue reading

Request your trial
9 cases
  • Turner v. Steele
    • United States
    • Kansas Court of Appeals
    • July 20, 2012
    ...an interest in property executed upon to seek relief prior to a sheriff's sale of their property. For example, in Yount v. Hoover, 95 Kan. 752, 755, 149 P. 408 (1915), the court held that the title owner of real property could file an action to enjoin sheriff's sale of his property that had......
  • Waugh v. Kansas City Public Service Co.
    • United States
    • Kansas Supreme Court
    • December 11, 1943
    ... ... See ... Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, ... 86 P.2d 583; Minch v. Winters, 122 Kan. 533, 540, ... 253 P. 578; Yount v. Hoover, 95 Kan. 752, 755, 149 ... P. 408, L.R.A.1915F, 1120, Ann.Cas. 1918C, 148, and ... Groenmiller v. Kaub, 67 Kan. 844, 73 P. 100 ... ...
  • Jackson & Scherer, Inc. v. Washburn
    • United States
    • Kansas Supreme Court
    • May 6, 1972
    ...Plaintiff, of course, was not a party to Margaret's divorce proceeding in which the execution was sought. In the case of Yount v. Hoover, 95 Kan. 752, 149 P. 408, we 'An action can be maintained by the owner of real property to enjoin its sale under an execution issued on a judgment against......
  • Minch v. Winters
    • United States
    • Kansas Supreme Court
    • February 12, 1927
    ... ... (R. S. 60-601; 60-705; Winfield Town ... Co. v. Maris, 11 Kan. 128, 147; Blodgett v ... Yocum, 80 Kan. 644, 649, 103 P. 128; Yount v ... Hoover, 95 Kan. 752, 755, 149 P. 408.) ... Yet ... another point is urged in support of defendants' demurrer ... to the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT