Alford v. Hoag , 8 Kan. App. 141 ( 1898 )

The opinion of the court was delivered by

Mahan, P. J.:

Upon a motion to revive a judgment in favor of the defendant in error and against the testator of the plaintiff, an objection was made to the introduction of the summons and return on the ground that the summons was void. It was issued November 9, 1887. . The answer-day was fixed in the summons for the 9th day of December, 1887. The officer was directed to return the writ on the 19th day of- December, 1887. It was contended that for this reason the summons was void and gave the court no jurisdiction'. The. return of the sheriff upon this summons. recited that it was served on the 14th day of November, 1887, “Upon the within-named James M..Dendry.” In the body pf the summons the. defendant was properly, named as James M. Ple-ndry.

The summons was not void. The return-day fixed by the clerk as December 19, 1887, instead of November 19, 1887, was an apparent clerical error that might have been corrected at any time on the record itself. The indorsement on the summons stated that it was returnable November 19, 1887. The record of the court so recited. It could-not have misled the defendant. The summons advised him -when his answer was due. The court acquired jurisdiction by the serv-' ice thereof on the defendant to render the judgment' it did- render. The second contention, namely, that the summons was void because it was served on James M. Dendry instead of James M. Hendry, the defendant, is likewise without merit. (Bank v. Sewing Society, 28 Kan. 424, and cases cited there by the court.) The same remarks apply to the third contention, which is that the amendment of the return of the sheriff on' the summons was void because at the. time the amendment was made the sheriff’s term' had expired. > '■

The fourth contention is that the execution issued September 9, 1892, and .the return, .thereon were not proper evidence because the execution was not returned and filed within the sixty days limited by the statute. It is true that the record discloses that it was not filed in the clerk’s office until the -26th of November, 1892. The return states that it was made on the 8th of November and within the sixty days. It is contended that because it was. not filed within' the sixty days it does not prove that any execution was issued or any effort made in good faith to collect the debt,-and therefore there was nothing to prevent the judgment from becoming dormant within five years from the last execution, which was issued August 5, 1889, or more than five years prior to the death of the defendant Hendry. The execution was filed and it- became, a part of the record and was evidence of the facts which it recited necessary to be proved by the plaintiff; that is, that execution had issued in good faith to the sheriff of Douglas county in an effort by the plaintiff to collect his judgment. It is true, as counsel say in their brief, that after the return-day nothing can be done under the execution. It is then functus officio. However, had a levy been made prior to the return-day, the writ would have been sufficient warrant for the sheriff making a sale. So that the fact of its not being returned does not render the act of the clerk in issuing it void, nor the act of the plaintiff in having it delivered to the sheriff void ; nor does it prevent it from becoming a part of the'record upon being filed, and, as a part of the record, proving the facts necessarily recited both in the writ and the return. The proof justified the judgment of revivor; no valid reason was shown by the defendant to the contrary.

The judgment is affirmed.