Reynolds v. Nelson

Opinion by ClogstON, C.: But one question is presented in this record which we shall notice: Did the district court of Barber county have jurisdiction to hear and determine the motion to amerce the sheriff of Barber county for failure to return the execution issued out of the district court of Hamilton county ? This court held in Fisher v. Franklin, 38 Kas. 251, that the district court of Shawnee county, out of which an execution issued to the sheriff of Sedgwick county, had jurisdiction to hear and determine the motion to amerce the sheriff of Sedgwick county for his failure to return the execution within sixty days. We think that is decisive of this ease. The jurisdiction is vested in some court, and we think properly vested in the court out of which the execution issued. This proceeding is in the nature of a penalty, an amercement for failure to return the process of the court out of which it issued, and that court alone, we think, ought to have the exclusive jurisdiction to determine that question. If it was an action against the sheriff for damages for failure to return an execution or other process issued by the court, in that case we think the jurisdiction would.be in the county where the sheriff resides, and not in the county to which the process was to be returned; but in an action of this character, in the nature of a penalty, and upon motion, it should be made in the county where the execution issued. Each court ought to have [43] the control of its own process, and ought to have the right to punish for contempt for failure to perform its demands or the refusal or neglect to return its process in time. If this authority be denied to the court, then it would have no power to protect itself against such neglect and misconduct. (See Cox, Sheriff, v. Ross, Adm’r, 56 Miss. 481; Tapp v. Bonds, 57 id. 281; Murfree on Sheriffs, §1055; Fay v. Edmiston, 28 Kas. 105.) We therefore recommend that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.