Dugan v. Harman , 80 Kan. 302 ( 1909 )

Mason, J.

(concurring specially) : I concur in the result stated, but think it pertinent that further reference be made to the authorities. Two objections are made to the execution which the trial court held void. One is that it did not distinctly refer to the judgments on which it was based; the other is that it was a single execution issued upon two separate judgments. So far as relates to the failure of the execution to recite the judgments with accuracy, the weight of authority supports the view, which is in harmony with modern tendencies, that the defect amounts only to an irregularity, and does not render the execution void. In volume 1 of the third edition of Freeman on Executions, section 43, this language is used, which was originally employed by the author in a note to John Graham, v. Thomas Price et al., 3 A. K. Marsh. (Ky.) *522, in 13 Am. Dec. 201, and the substance of which has been quoted with approval in Anderson v. Gray, 134 Ill. 550, and in DeLoach v. Robbins, 102 Ala. 288:

“There is a just distinction between executions issued without authority, and executions issued under an authority which is erroneously pursued. . . . The former class is void; the latter may, with equal propriety, be termed either irregular or erroneous. When an execution can properly issue, a mistake made by the officer in performing the duty of issuing it is necessarily a mere error or irregularity. ... If, from the whole writ, taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced as an execution upon the judgment shown to the court, then we apprehend that the writ ought to be received and respected.”

The question presented by the other objection is in effect whether the act of a clerk in combining what should be two separate executions — using one piece of paper where he ought to use two — renders the resulting instrument an absolute nullity. By the test proposed in the foregoing quotation it would seem not. Authority to issue two executions exists; that they are issued in combination instead of separately is due to a mistake of the clerk, and therefore, by the criterion suggested, should rank as an irregularity only. In Bigham v. Dover (Ark. 1908), 110 S. W. 217, it was held, following two cases cited in volume 17 of the Cyclopedia of Law and Procedure, at page 932, that a single execution based upon two judgments in favor of different plaintiffs against the same defendant was void. The trial court decided otherwise, and two of the five members of the supreme court dissented. The result was affected by earlier Arkansas cases holding that an execution defective in substance is not susceptible of amendment. The three cases referred to appear to be the only ones holding that an execution is void because based on separate judgments in favor of different persons. Those cited in volume 17 of the Cyclopedia of Law and Procedure, at page 1013, in support of the proposition that joint executions can not issue on separate or several judgments decided merely that such executions were vulnerable to a direct attack.