Armstrong v. Grant , 7 Kan. 285 ( 1871 )

The opinion of the court was delivered by

Valentine, J.:

1. A sheriff, ’m amerced. The proceeding in the court below, of which the plaintiff in error complains, was an order of the district court of Leavenworth county amercing him as sheriff of Wyandotte county. The plaintiff in error was charged with neglecting and refusing to execute a a writ of execution directed to him from the district court of Leavenworth county; and he was also charged with neglecting and refusing to return said writ to said court. It appears from the record in this case that the plaintiff in error had once been sheriff of Wyandotte county, but that his term of office had expired before this proceeding to amerce him was commenced; and at no time during the prosecution of this proceeding was he sheriff' of Wyandotte county. He therefore, for that reason claims, that he could not be amerced. He 7 claims that a sheriff except one in office is that kind of prosecution; for instance, he claims that a sheriff may, while in office, commit any official wrong whatever, and if he should be threatened with, or if he should apprehend any prosecution, by amercement, for the wrong, he could resign his office and thereby evade and escape the prosecution. We do not think that such is the law. Huslick v. Allen, 1 Cox (N. J.,) 168; 169; Graham v. Newton, 12 Ohio, 210. Where a proper case is made, a sheriff whose term of office has expired may undoubtedly be amerced, as well as one who is still in office; but of course the amercement must be for some official misconduct.

2. judgment; mí/aítlck?' ° The said writ of execution was issued on a judgment in favor of the defendants in error, and against one John Hammill. The service of the summons in the case in which this judgment was rendered was made on Hammill on the return-day of the summons, and not before, and the judgment was rendered against Hammill by default, no appearance having been made. The plaintiff in error therefore claims that the judgment was void because the summons was not served until the return-day thereof. It is true that the' service on Ham-mill was irregular; Gen. Stat., 642, § 64 ; Dutton v. Hobson, ante, p. 196; but the judgment was not for that reason void; it, at most, was only voidable, (Meisse v. McCoy’s Adm’r, 17 Ohio St., 225,) and can be attacked by Hammill only, or by his legal representatives, and only by a direct proceeding instituted for that purpose. The sheriff has no right to raise any objection to such a service, or such a judgment. Shearman & Red. on Neg., 2d ed., § 528, and cases there cited; Gwynne on Sheriffs, 1st ed., 574, 581; Duncan v. Drakely, 10 Ohio, 45, 49. Said judgment is valid until set aside or reversed.

-Duty tvnd iheriffSi?cussed. The said writ of execution was issued on the 6th day of December, 1869, and the sheriff had sixty days from that time in which to return it to the court from which it was issued: Gen. Stat., 720, § 469. ppe coui(j not "be compelled to return it before the end of the sixty days, and could not be held liable for any neglect or refusal to return the same before that time. Before the sixty days had elapsed, the said, Armstrong ceased to be sheriff of Wyandotte county. His term of office as sheriff expired on the 10th day of January, 1870, but the said sixty days did not elapse until the 4th day of February, 1870. At the time that his term of office expired, the execution was still in his hands, but he had done nothing under it. He had made no levy under it, and had not even delivered it the clerk of the district court of Wyandotte county to be entered on the execution docket of that county; (Gen. Stat., 722, §475.) He had not 14 begun to execute ” the writ 44 by service, levy, or collection of money thereon,” within the meaning of § 109 of the act relating to counties and county officers: ch. 25, Gen. Stat., 279. Then what was his duty with reference to said writ ? As he had not commenced to execute the writ while he was sheriff, he had no power to commence the execution of the same after-wards, and neither had he any power to return the writ to any court. Only one thing remained for him to do. It was his duty to deliver the writ, on demand, to his successor in office : Gen. Stat., 279, § 108. But he is not charged with failing or refusing to perform this duty; and if he was so charged, amercement is not the proper remedy; and neither is it shown that any demand was ever made for the writ. But he is charged with neglecting and refusing to execute the writ; and counsel for defendants in error seem to claim that the execution of a writ means, in such a case, the delivery of the same by the out-going sheriff to his successor. Ve do not think so. To execute a writ,' means, to carry put the command of the writ. A sheriff commences to execute a writ of execution when he commences to levy upon the property of the judgment debtor, and not before. In this case the sheriff never commenced to execute the writ; and after his term of office expired he had no power to commence the execution of the same. From the foregoing we draw the following conclusions : First: As it never was the duty of the said sheriff either before or after his term of office expired, to return said writ to any court, therefore he cannot be amerced for failing or refusing to return the same to the district court of Leavenworth county. Second: As the said sheriff never had the power to execute or commence the execution of said writ after his term of office expired, therefore he cannot be amerced for failing or refusing to execute said writ after his term of office expired.

3. Amercement; stances to be shown in certain cases. The next question, and one that is more difficult, is, whether the said sheriff is liable for neglecting or refusiQg to execute said writ before his term of omce expired, or tor neglecting or refusing to A 00 o commence the execution of the same before that time. It is undoubtedly the duty of a sheriff to levy on the property of the judgment-debtor as soon as he conveniently can after receiving the writ; (Gen. Stat., 714, §448;) but he is not bound to levy where the judgment-debtor has no property subject to an execution; nor on goods and chattels where the title to the same is doubtful, unless the judgment-creditor gives.him an indemnity bond; (Gen. Stat., 715, §449;) nor generally on real estate, unless the same is pointed out to him by the judgment-creditor; (Shear. & Red. on Neg., §524; Palmer v. Gallup, 16 Conn., 555; Betts v. Norris, 15 Maine, 468;) and in no case is he required to exercise more than reasonable and ordinary diligence to discover property belonging to the judgment-debtor. (Shear. & Red. on Neg., §§ 521, 522, 523, and cases cited.) “Ordinarily the sheriff has until the return-day named in the writ or process within which to execute it; ” (Shear. & Red. on Neg., § 521, and cases cited;) and if he does not serve the writ until the return-day, he will not be presumed to have been negligent, unless there are special circumstances which show him to have been negligent. “ If the plaintiff in the writ * * * directs an immediate service, the sheriff is bound to follow such directions, and on failure is answerable for the consequences: ” (Shear. & Red. on Neg., § 251.) Or, if the sheriff should have reasonable grounds to believe that if he did not immediately serve the writ, there would be danger of loss to the judgment-creditor from his delay, he would be bound to serve the writ immediately, or be answerable for the consequences. There-is always a strong presumption in favor of a public officer that he has performed the duties of Ms office faithfully; (Shear. & Red. on Neg., § 169, and cases there cited;) and if any person should claim that an officer has not performed his duty, it will devolve upon such person to affirmatively show it.

In the case at bar, there was no evidence that tended to prove that the judgment-debtor had any personal property ; and there was but very little evidence that he had any real estate. The evidence upon this subject is in a deposition of John M. Funk, and is as follows : “ Mr. Armstrong about the month of December, 1869, told me he had received an execution from Hurd & Birnie in favor of Grant & Prest, of Leavenworth county, and against John Hammill, and asked me if I knew anything about his lots in Wyandotte City. He said he wanted to make a levy on his lots here, (at Wyandotte.) He said he was referred to. me for a description of the lots. I told him I had the numbers of his lots in my office. I hadn’t them with me. I told him I would give him the numbers at any time he would call at my office. * * * Afterwards I called upon Armstrong at the request of Hurd & Birnie, to find out what he had done with the execution in favor of Grant & Prest, and against Ham-mill. He said he had never levied on Hammill’s property here ; had not done anything with the execution. He said he had returned the execution to the parties who sent it to him.” If this was any evidence that Hammill owned any property in Wyandotte county it was certainly very weak evidence. If Hammill owned any lots in Wyandotte City, what was his title ? legal or equitable, absolute or conditional, incumbered or unincumbered? and were the lots subject to an execution, or were they his homestead, and exempt from execution? None of these questions are answered by the evidence. The presumption is that the sheriff did his duty, and it devolves upon Grant & Prest to show that he did not. If Ham-mill had any property that was not exempt from execution, it devolved upon Grant & Prest to show it; otherwise it will be presumed that Hammill had no property which was subject to an execution. And in order to make the sheriff liable for not serving the writ- within the thirty or thirty-five days within which he had the power to serve it, some special circumstances of negligence must be shown. This we think the plaintiffs below failed to do. They did not designate the property upon which they desired to have the sheriff to levy. The most that they did was to refer the sheriff to another person. The sheriff went to this other person and told him that “ he wanted to make a levy ” on Hammill’s lots, but this other person could not then give a description of the lots. Was the sheriff required to call again? Was he culpably negligent for not calling again within the thirty or thirty-five days that he held the execution ? Or had the plaintiffs themselves done enough on their part to make the sheriff culpably negligent for not levying within that time ? Besides, it is not shown that Grant & Prest have lost anything on account of any failure of the sheriff to serve said writ before his term of office expired; and as we have alieady stated, in order to make a sheriff liable for not serving a writ on some day before the return-day, it is necessary to show some special circumstances of negligence; as that he was ordered to serve it, and neglected or refused; or, that some loss accrued on account of his neglect to serve the writ sooner.

i. Practice: mo-We do not think that the court below was bound to make special findings on the determination of said motion. The action of the court in such a case is on a written motion, and not on pleadings; its determination is an order, and not a judgment; and while, of course, it is necessary for the court to make mental findings, it is not necessary that these findings should he made a part of the record. The order is founded on, and stands or falls by the evidence; while a judgment is founded on, and must be sustained by the finding of the court, the verdict of a jury, or the report of a referee. The motion was heard on written evidence entirely, and hence we can examine the evidence and weigh it, just as intelligently as the court below could

The order of the court below, amercing said sheriff is reversed, and the case remanded for further proceedings.

All the Justices concurring.