Titus v. Comm'rs of Howard Co.

The opinion of the court was delivered by Beewee, J.: The plaintiff in these two cases (Nos. 721 and 722,) was sheriff of Howard county, and the claims are for fees on personal tax warrants. No service was made of these warrants. The officer claimed mileage, and a fee of twenty-five cents for return of “No goods.” The district court decided adversely to both claims, and the plaintiff alleges error. The claim for mileage was properly rejected. Comm’rs Labette County v. Franklin, 16 Kas. 450. The fee of twenty-five cents, for return of “No goods,” should have [364] been allowed. Gen. Stat. p. 477, § 3. This is all there is in case No. 722. In No. 721 this additional fact appears, which it is claimed will affect the question of. mileage. The warrants were for the taxes of 1873. The person who was county treasurer that year became a defaulter, and abandoned the office. The tax-roll was also destroyed. Subsequently a new roll was ’ prepared, which by act of the legislature was declared valid, and warrants ordered to be issued upon it, as upon the original. (Laws 1875, p. 153.) Warrants were issued, and placed in the hands of the plaintiff to collect. Two of the parties against whom warrants were thus issued produced receipts, showing the payment to the defaulting treasurer while in office. Of course that defeated any service of the warrant. Hence plaintiff contends that as he could have served the warrant, and attempted to do it, and was prevented only by reason of the fact that the party against whom the warrant ran had already paid his tax, that he is entitled to his mileage, as though he had served it. And this claim seems to us well founded. Officers to whom process for the collection of money is directed, take the chances of finding property, out of which to make the debt; but they have a right, as against the party in whose favor or at whose instance it is issued, to consider the process as valid, and authorizing them to take measures to execute it. If not valid, and not giving the authority to collect, and the defect is chargeable to the party, and by reason thereof the collection is defeated, it would seem clear that the officers would be .entitled to fees for what they actually did, just as though the process was valid, and that the party would be estopped from saying that no service had been made of it. Hence we think the sheriff was entitled to mileage on these two warrants. The judgments in both cases will be reversed, and the cases remanded with instructions to render judgment on the agreed facts in accordance with the views herein expressed. All the Justices concurring.