Collins v. Ritchie , 31 Kan. 371 ( 1884 )

The opinion of the court was delivered by

Horton, C. J.:

The writer is of the opinion that if the district court was convinced, upon the hearing before it, that the return of the officer was not in accordance with the actual facts therein set forth, or that the officer had in any way abused the process, the court had the power to refuse to confirm the sale. The other members and the majority of this court, however, are of the opinion that upon the record, the purchaser at the sale had rights which it was the duty of the court to protect; that as the return of the officer shows after diligent search he was unable to find any goods or chattels of any kind whereon to levy the execution, and as all the proceedings of the sale seem to have been in conformity with the statute, the motion to set aside the sale should have been overruled and the sale confirmed. (Challiss v. Wise, 2 Kas., 193; White-Crow v. White-Wing, 3 id. 276; Treptow v. Buse, 10 id. 170; Dewey v. Linscott, 20 id. 684; New England Mortgage Co. v. Smith, 25 id. 622.)

We all agree that it is not absolutely necessary for an officer having an execution to make a personal demand of the judgment debtor for the amount thereof, or notify him he holds an execution against him, before levying upon his real property; that he is only required to exercise reasonable and ordinary diligence to discover whether goods and chattels can be found belonging to the debtor, before levying upon real estate; and he may, under some circumstances, have sufficient knowledge at the issuance of the execution that the debtor has no goods or chattels subject to levy, so that search is wholly useless.

The order of the district court will be reversed, and the case remanded for further proceedings.

Brewer, J., concurring.