Commonwealth ex rel. Certain Taxpayers v. Ratcliff

Opinion of the court by JUDGE NUNN Affirming. At tlie May, 1902, term of the Nicholas circuit court, the •citizens and tax-payers of that county, who sued in the name [855] of the Commonwealth, recovered a judgment against the appellee, the then sheriff of that county, for about $3,000, with interest and costs.. This- recovery was on account'of the sheriff having collected taxes for county purposes to that extent above the constitutional limit; that is to say, that much more than the Constitution permitted to be collected for any one year. The fiscal court of that county made the assessment and directed the sheriff to collect, but, to the extent of the amount of recovery .stated, the assessment was-void. It would seem that that judgment had never been paid by the appellee. This proceeding is upon a notice by appellant, and a motion made by it in court at the February, 1904, term, asking the court to append to the judgment of 1902 an order awarding a capias ad satisfaciendum under section 1601, Kentucky Statutes, 1903. The court refused the motion of appellant and dismissed this proceeding, and the appellant has appealed. The appellant is proceeding upon the idea that the failure to append this to the judgment at the time it was rendered was a clerical misprision. This is a mistake. Even conceding that this writ should have been awarded or noted at the foot of the judgment of 1902, the failure to do so was an error of law and not clerical in its character, and appellant’s remedy was by an appeal from this judgment. The failure of a court to render a judgment in conformity with’ the law is not a clerical misprision. See Rogers v. Bradford, 8 Bush, 164. By the section of the statutes referred to it is provided that a capias ad satisfaciendum may issue, except against females, upon all judgments for a trespass vi et armis for seduction, or for slander, written or verbal, or for malicious prosecution. The appellant contends that the action of the sheriff in the collection of the taxes referred to was a tres [856] pass vi et armis. We are of the opinion that this is error. Such a trespass is an unlawful act committed with force and violence on the person, property, or the relative rights of another — injuries accompanied by force. The action of the sheriff in collecting these taxes was not a trespass by force and violence in the meaning and sense as used in the statutes. To commit a trespass vi et armis the trespass must have'been committed with at least a knowledge that a wrong was being done, and it must be accompanied with some force and violence. These elements of wrong do not appear in this record. Wherefore the judgment of the lower court is affirmed.