Abbildungen der Seite
PDF
EPUB

Sec. 166. The writ of execution to be returned in sixty days. The sheriff or other officer, to whom any writ of execution is directed, must return such writ to the court to which the same is returnable, within sixty days from the date thereof." The levy cannot be made after the return day.' The writ cannot be compelled to be returned before the expiration of the sixty days; and all sales made after the time within. which the writ should be returned are illegal." But this rule does not apply in cases where the property is sold under order of sale, or venditioni exponas.10

8

Sec. 167. Fee of appraisers-Penalty for failure to appear. Each householder summoned to appraise real estate under the provisions of this chapter, will be allowed and receive for his services, the sum of fifty cents for each day he may be so engaged as such appraiser, to be collected on the execution by virtue of which the property appraised was levied on, if claimed at the time of making the return of such appraisement. And when any householder, summoned as aforesaid, fails to appear at the time and place appointed

Snyder, 5,994; Wilson, 4,660; Kansas, 4,515 (1901), identical; Nebraska, 1,512 (1907), identical.

7 Barnor v. Stevens, 2 Ark. 429; Caines v. Clark, 1 Bilb. 608.

Armstrong v. Grant, 7 Kan. 286; Burkett v. Clark, 64 N. W. (Neb.) 1,113.

9 Schiltz v. Smith, 17 Kan. 306. 10 Norton v. Reardon, 67 Kan. 302, 72 Pac. 861; Jarrett v. Hoover, 72 N. W. 429. "If the levy be made before the return day of the writ, the officer may sell afterwards on the same writ without renewal of process. It is immaterial to the purchaser as to the validity of the sale, whether the sale be made before or after the return day; or

at what date the return is made; or whether the return be correct or incorrect; or whether any return be made at all, if the writ really be levied before the return day mentioned therein. It is not the return of the officer that gives title to the purchase, but the sale." Rorer on Judicial Sales, Secs. 705 and 706, citing Remington v. Linthicum, 14 Pet. 84; Wheaton v. Sutton, 4 Wheat. 503; Barnard v. Stevens, 2 Ark. 420; Childs v. McChesney, 20 Ia. 341; Stewart v. Severance, 43 Mo. 322; Stine v. Chambliss, 18 Ia. 474; Phillips v. Dana, 3 Scam. 558; Wood v. Colvin, 5 Hill, 231; Barney v. Patterson, 5 Har. and J. 204.

by the officer, and discharge his duty as appraiser, he will, on complaint being made to any justice of the peace in the township in which such householder resides, forfeit and pay the sum of fifty cents for every such neglect, unless he can render a reasonable excuse. Such sum must be collected by said justice, and paid into the township treasury for the use of the township."1

Sec. 168. When execution may issue to sheriff of another county.

When an execution is issued to the sheriff of any county, other than that in which the judgment was rendered, the sheriff, after indorsing the date of its reception thereon, must deliver the same to the clerk of the district court of his county, who is required thereupon to enter the same in the execution docket in the same manner as if it had issued from the court of which he is clerk; and before the sheriff can return any such writ, he must cause his return to be entered in like manner.12

Sec. 169. The officer may mail execution to another county.

When execution is issued in any county in this State, directed to the sheriff or other officer of another county, it will be lawful for such sheriff or other officer, having the execution, after having discharged all the duties required of him by law, to inclose such execution by mail, to the clerk of the court who issued the same. On proof being made by such sheriff or other officer, that the execution was mailed soon enough to reach the office where it was issued within the time prescribed by law, the sheriff or other officer will

11 Snyder, 5,996; Wilson, 4,662; Nebraska, 1,514 (1907), identical. Appraisers are not entitled to mileage, nor sheriff to any fee for act

ing. Phoenix v. McEvoy, 72 N. W. (Neb.) 956.

12 Snyder, 6,000; Wilson, 4,666; Kansas, 4,921 (1901), similar.

not be liable for any amercement or penalty, if it does not reach the office in due time.13

Sec. 170. Money collected by execution in another county may not be returned by mail.

No sheriff shall forward by mail any money made on any execution, unless he shall be especially instructed to do it by the plaintiff, his agent or attorney of record. In all cases of a motion to amerce a sheriff, or other officer of any county other than that from which the execution issued, notice in writing shall be given to such officer, as hereinbefore required, by leaving it with him, or at his office, at least fifteen days before the day on which such motion will be made. All amercements so procured shall be entered on the record of the court, and shall have the same force and effect as a judgment.14

Sec. 171. Sureties of sheriff may be made parties to the judgment Property of officer to be first exhausted.

Each and every surety of any sheriff or other officer may be made party to the judgment rendered as aforesaid against

13 Snyder, 6,001; Wilson, 4,667; Kansas, 4,922 (1901), identical. Where an execution is directed to the sheriff of any county in this State other than the one in which it is issued, the same may be re

turned through the United States
mail;
and if the sheriff, after having
performed all that is required of
him, in an attempt to execute the
same makes out a certificate of his
doings thereunder, dates the same,
and has the clerk of the district
court of his county enter the return
on his execution docket, and he then
deposited the same in the United
States postoffice, addressed to the

clerk of the court where it is issued, a sufficient time before the return day for it to reach the office of the clerk issuing the same, and it fails to reach the office of the clerk who issued it on or before the return day thereof, the sheriff is not liable for amercement or penalty. Reese v. Rice, 1 Kan. App. 311, 41 Pac. 218.

14 Snyder, 6,002; Wilson, 4,668; Kansas, 4,923 (1901), identical; Nebraska, 4,923 (1907), identical; see Fenton v. White, 4 Okla. 472, 47 Pac. 472; McNee v. Sewall, 16 N. W. (Neb.) 824; Fuller v. Wells, 42 Kan. 551, 22 Pac. 561.

the sheriff or other officer, by action, to be commenced and prosecuted as in other cases; but the goods and chattels, lands and tenements of any such surety shall not be liable to be taken on execution, when sufficient goods and chattels, lands and tenements of the sheriff or other officer against whom execution may be issued, can be found to satisfy the same. Nothing herein contained shall prevent either party from proceeding against such sheriff, or other officer, by attachment, at his election.15

Sec. 172. Officer on amercement may collect original judgment, when.

In cases where a sheriff or other officer may be amerced, and shall not have collected the amount of the original judgment, he shall be permitted to sue out an execution and collect the amount of said judgment, in the name of the original plaintiff, for his use.16

Sec. 173. When contribution may be required.

When property, liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case, the person so paying or contributing, is entitled to the benefit of the judgment, to enforce contribution or repayment, if within ten days after his payment, he file, with the clerk of the court where the judgment was rendered,

15 Snyder, 6,003; Wilson, 4,659; Kansas, 4,924 (1901), identical; Nebraska, 1,520 (1907), identical; see Passwilk v. Bollman, 45 N. W.

(Neb.) 780; Faye v. Edmiston, 28

Kan. 106.

18 Snyder, 6,004; Wilson, 4,670; Nebraska, 1,521 (1907), identical.

notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk shall make an entry thereof in the margin of the docket."

Sec. 174. Equitable interest in lands subject to levy--Stocks -Choses in action.

When a judgment debtor has not personal or real property subject to levy on execution, sufficient to satisfy the judgment, any equitable interest which he may have in real estate, as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint stock company, or any interest he may have in any money, contracts, claims, or choses in action, due or to become due to him, or in any judgment, or decree, or any money, goods, or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment, by action, or as hereinafter prescribed. 18 There are many decided cases on the subject set forth under this statute, but the space allotted to this work forbids discussion of the same. A few of the decisions will be found in the notes below.19

17 Snyder, 6,004; Wilson, 4,671; Kansas, 4,926 (1931), identical; see, also, Honce v. Schram, 73 Kan. 368, 85 Pac. 535; City v. Kansas City, etc., 66 Kan. 610, 72 Pac. 238; Wordem v. Jones, 1 Kan. App. 304, 40 Pac. 1,071.

18 Snyder, 6,006; Wilson, 4,672; Kansas, 4,957 (1901), identical; Nebraska, 1,535 (1907), identical.

19 As to parties to an action to get at an interest fraudulently conveyed, see First v. Gibson, 94 N. W. (Neb.) 965. As to allegations of creditors' bill, see State v. Bilk, 94 N. W. (Neb.) 617. As to causes

of action of creditors, see Gemani v. First, 80 N. W. (Neb.) 48. As to burden of proof, see Parline v. Ulrich, 78 N. W. (Neb.) 275. The bill must show the lien on the part of the creditor. Fairbanks v. Weishaus, 75 N. W. 865. As to the equitable interest to be reached, see Kiser v. Sawyer, 4 Kan. 503; Kirk v. Kiester, 11 Kan. 471; Moyer v. Riggs, 8 Kan. App. 234, 55 Pac. 494; Van Vliett v. Halsey, 37 Kan. 116, 14 Pac. 482; Clark v. Burt, 2 Kan. App. 407, 42 Pac. 733; Loades v. Hood, 29 Kan. 39.

« ZurückWeiter »