Toner v. Page

Bausman, J. Suit by a sheriff to correct his return which, he says, erroneously stated his having received on execution sale a much larger sum than the actual amount. The sale had long since been confirmed in the greater sum and the sheriff was already sued by an assignee of the judgment debtor in another court for the surplus. The present suit is a formal civil action with many defendants, yet what is sought by the complaint and awarded by the decree is not the setting aside of the sale, but a mere correction of the stated amount. The sheriff has chosen the wrong procedure. His remedy is by motion in the original cause, where courts have ample power on proper showing to do justice in this respect to their own officers. 11 Cyc. 1374; 3 Freeman, Executions, § 358 et seq. For this relief we know of no civil action. The formal, expensive machinery of suit is not to be set in motion every time an officer of court seeks to correct the lan [315] guage of his return on summons, attachment, writs, or executions. Nor can we treat formal action as the equivalent of application in the original cause, for such procedure would undoubtedly expose other parties to questions of res adjudicata in such suits as they may have begun upon the existing record. Here it is noticeable that the plaintiff, while he attempts to get the benefits of the full procedure of the superior court, at the same time denies to defendant the right to counterclaim, arguing that this is no ordinary action. Neither does he conceive himself subject to statutes of limitation applicable to civil suits. The objection of appellants to the jurisdiction of the superior court is sustained, and the cause is reversed with orders that the action be dismissed without prejudice to either party. ■ Morris, C. J., Main, Holcomb, and Parker, JJ., concur.