It is error on proceedings for a confirmation of an execution sale to order that the surplus be paid to the purchaser, though it be shown that since the execution sale he has become the assignee of an outstanding equitable mortgage on the premises.23

Where land is sold by a sheriff under execution, and more money is paid than necessary to satisfy the execution, the excess belongs to whoever owns the land, and, when it is paid into court as a part of the proceedings in an action to which the then owner is not a party, an order of the court disposing of such money without notice to and without the knowledge or consent of the then owner of the land is without jurisdiction, and void. 24

"The sheriff or other officer to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof." 25

If no property is found, the execution may be returned immediately.26

Where a sheriff's return on a sale of property under execution fails to show the exact truth relating to such sale, through omission or mistake, an amendment should be allowed to make the record speak the truth.27

The individual liability of a stockholder arises after a judgment has been rendered against the corporation, and when an execution thereon has been returned nulla bona; and, in the absence of fraud

28 Tucker v. McCrie, 55 P. 493, 8 Kan. App. 228.

24 Poole v. French, $3 Kan. 281, 111 P. 488.

25 Rev. Laws 1910. § 5178.

The statute requiring a sheriff to return an execution in 60 days from its date, has been held to have no application to an execution in a special case provided for another statute. Price v. Citizens' State Bank of Mediapolis, 102 P. 800, 23 Okl. 723.

A statute providing that a sheriff shall return a writ of execution within 60 days from its date, does not apply to executions in special cases mentioned in another statute defining executions, and providing for special executions conforming to the judgment or order of the court. Norton v. Reardon, 72 P. 861, 67 Kan. 302, 100 Am. St. Rep. 459.

28 Buist v. Citizens' Sav. Bank of Concordia, 46 P. 718, 4 Kan. App. 700. The following return: "Finding no property whereon to levy to make the amount of this execution, I now return this writ"-held not to be a return nulla bona. Beers v. Bunker, 50 P. 505, 6 Kan. App. 697.

27 Payne v. Long-Bell Lumber Co., 60 P. 235, 9 Okl. 6S3; Stetson v. Freeman, 11 P. 431, 35 Kan. 523.

on the part of the officers, such return is conclusive, as against the stockholder, that the corporation property has been exhausted.28

19, sold the following goods and chattels at the prices

set opposite the same, respectively:

(No Personal Property Found-Levy on Real Property)

Sheriff's Office,

County, State of Oklahoma.

day of, A. D., 19, at

Received this writ this

o'clock

m. According to the command of the within

28 Steffins v. Gurney, 59 P. 725, 61 Kan. 292; Thompson v. Pfeiffer, 56 P. 763, 60 Kan. 409.

writ, finding no goods or chattels belonging to the within named defendant whereon to levy on the

day of, A. D.,

19, I did forthwith levy said writ upon the following described of said debtor, situated in county, and state of Ok

lahoma, to wit: which were liable to satisfy said judgment, and did cause the same to be appraised by

and

, three disinterested householders residing within said county wherein said lands are situated, and administer to them an oath impartially to appraise said property levied upon, upon actual view.

And said householders did forthwith return to me, under three disinterested householders residing within said county wherein said lands are situated and administer to them an oath with the clerk of said district court from whence the execution issued, and' did cause public notice of the time and place of sale of said

to be given over vertisement in the circulation in

days before the day of sale thereof, by ad-, a newspaper printed in and of general county, state of Oklahoma, a copy of said notice with the printer's affidavit is hereto attached and made part of this return.

county, state of Oklahoma, the time and place stated in said notice, at public auction, to the highest and best bidder for cash in hand.

Sold the following

for the sum of $

for cash in hand to

to wit: -, he being the highest and best bidder for said property and that being the highest and best price bid for the same. Said purchase money I

19—. I can find no property of the within C. D. in my county (or, the within C. D. has no property in my county subject

§ 1660. Neglect of officer

"If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed, which has come to his hands, or shall neglect or refuse to sell any goods and chattels, lands and tenements; or shall neglect to call an inquest and return a copy thereof forthwith to the clerk's office, or shall neglect to return any writ of execution to the proper court on or before the return day thereof; or shall neglect to return a just and perfect inventory of all and singular the goods and chattels by him taken in execution, unless the said sheriff or other officer shall return that he has levied and made the amount of the debt, damages and costs; or shall refuse or neglect, on demand, to pay over to the plaintiff, his agent or attorney of record, all moneys by him collected or received for the use of said party at any time after collecting or receiving the same, except as provided in section 5167; or shall neglect or refuse, on demand made by the defendant, his agent or attorney of record, to pay over all moneys by him received for any sale made, beyond what is sufficient to satisfy the writ or writs of execution, with interest and legal costs, such sheriff or other officer shall, on motion in court, and two days' notice thereof in writing, be amerced in the amount of said debt, damages and costs, with ten per cent, thereon to and for the use of said plaintiff or defendant, as the case may be." 29

§ 1661. Payment

"After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the sheriff's receipt shall be a sufficient discharge for the amount so paid, or directed to be credited by the judgment creditor on the execution." 30

29 Rev. Laws 1910, § 5180. 30 Rev. Laws 1910, § 5194.

(1570)

Sections

ARTICLE VII

SUPPLEMENTAL PROCEEDINGS

1662. In general.

1662a. Examination of debtor and others-Arrest-Contempt.
1663.

Reference-Form.

The statutory remedy commonly known as "proceedings in aid of execution," for the ascertaining and taking of equitable interests in real estate, are not the only provisions for that purpose, but are merely cumulative or alternative.31

An abstract of a judgment of a justice of the peace, duly filed in the district court, is a sufficient basis for a proceeding in aid of execution.32

§ 1662a. Examination of debtor and others-Arrest-Contempt "When an execution against a judgment debtor, or one of the several debtors in the same judgment, issued to the sheriff of the county where he resides, or, if he does not reside in the state, to the sheriff of the county where judgment was rendered, or a transcript of a justice's judgment has been filed, is returned unsatisfied, in whole or in part, the judgment creditor is entitled to an order of the county judge, or judge of the district or superior court of the county to which the execution was issued, requiring such debtor to appear and answer concerning his property, before such judge, or a referee appointed by such judge, at a time and place specified in such order, within the county to which the execution was issued." 33

31 Poole v. French, 80 P. 997, 71 Kan. 391.

32 Honce v. Schram, 85 P. 535, 73 Kan. 368. 33 Rev. Laws 1910, § 5190.

Kansas cases. In proceedings in aid of execution, instituted under Code, § 482, the judgment debtor cannot be required by an order of the judge of the