Fuller v. Wells, Fargo & Co.

The opinion of the court was delivered by Horton, C. J.: S. H. Fuller as sheriff of Osage county was amerced in the sum of $11,770, for neglecting and refusing to execute a special writ of execution issued to him by the clerk of the district court of Sumner county, on the 22d day of April, 1886, which was returned by him without service on the 28th day of July, of the same year. The proceeding to amerce was commenced July 25,1887 — more than a year after the time the sheriff should have returned the execution. Fuller claims that the order of amercement is erroneous and should be reversed, because the proceeding at its commencement was barred by the statute of limitations, [555] and also because the execution or indorsements thereon did not follow the judgment. It is contended that a proceeding to amerce is within the spirit, if not within the letter of subdivision 4, §18 of the code, which provides that an action for penalty or forfeiture must be brought within one year. On the part of Wells, Fargo & Co., it is claimed that there is not any statutory limitation against a motion to amerce; that §18 of the code applies to civil actions only, and that a motion to amerce is not a civil action, but a special proceeding. Technically and strictly the language of §18 does not embrace a proceeding to amerce, because it refers to civil actions exclusively, but its spirit and intent does apply to such a proceeding. An action is defined by §4 of the code as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. The proceeding to amerce is in the nature of an action to redress a wrong. The object of the proceeding is to give the judgment creditor satisfaction, or a penalty for the omission of the official duty of a sheriff. In saying that a motion to amerce is in the nature of an action to redress a wrong, we do not intimate that special findings are to be allowed on the hearing thereof. The motion is to be heard and disposed of as provided by the terms of the statute. (Armstrong v. Grant, 7 Kas. 296, 297.) If an ordinary action at law had been brought by Wells, Fargo & Co. against Fuller for damages for his omission of official duty, it is not and cannot be denied that the statute of limitations would apply. It is said in Chick v. Willetts, 2 Kas. 384, that— “The statute of limitations of this state is wholly unlike the English statute, and differs materially from the limitation laws of those states, which have adhered to the common-law forms of action and modes of procedure. Those statutes apply, in terms, to the form of the action at law, and contain no provisions concerning an equitable proceeding. If a party had concurrent remedies, one at law, the other in equity, courts of equity applied the limitation prescribed for the action at [556] law. But iu all other cases they were said to act merely in analogy to the statutes, but not in obedience to them. In this state the case is entirely different. The distinction between actions at law and suits in equity is abolished; and the statutes of limitation apply equally to both classes of cases. They are made to apply to the subject-matter, and not to the form of the action.” The statute of limitations is regarded iu this state as a statute' of repose; it is designed for peace and quiet. (Sibert v. Wilder, 16 Kas. 176.) Sheriffs would find little benefit in the statute of limitations which protected them from the consequences of an action after the running of the statute, but left them exposed to the more summary and severe remedy of a motion for the same cause. In Seymour v. Cooper, 26 Kas. 539, the exemption statute was construed to apply to the personal services or earnings of a debtor in attachment or garnishment proceedings. The statutes do not anywhere in express terms create such an exemption, and yet an exemption was declared in such a case, because within the evident spirit and intent of the legislature. Again, the statute of limitations in a narrow and a technical sense applies only to civil actions commenced by the filing of a petition, but the statute has always been extended to a plea of set-off, on the ground that the spirit and intent of the act embraces an outlawed claim which the party attempts to avail himself of by a set-off as much as the same claim, when the party attempts to enforce it by a direct action, and therefore a set-off is within the spirit and intent of the statute, but not within its letter. We think the statute of limitations should apply in such a case as this, and that the courts have the power to withhold and should withhold the exercise of their jurisdiction in summary proceedings, whenever an action for penalty or forfeiture sought to be enforced is barred by the statute. (Van Tassel v. Van Tassel, 31 Conn. 521; Merritt v. Parks, 6 Humph. 332; Butler v. Winters, 2 Swan, 91; Prewitt v. Hilliard, 11 Humph. 425.) In this state all amercements are entered on the record [557] of the court, and have the same force and effect as a judgment. (Civil Code, §477.) In special proceedings, which are ancillary, like attachments, temporary injunctions, etc., no statute of limitations is necessary, because such proceedings are subservient to the principal case and cannot be prosecuted if the main action is barred. Not so with a motion to amerce. It is a proceeding, prosecuted for official misconduct, or omission. Against this conclusion we are referred to The State v. Crowell, 1 W. L. Jour. 305. That decision was rendered by the common pleas court of Sandusky, Ohio, in 1848, and is not very high authority. The decision in Chinn v. Trustees, 32 Ohio St. 236; construing a proceeding by mandamus not a civil action, and therefore not within the statute of limitations of the code, is contrary to the decisions of this' court, and therefore cannot be followed. (Judd v. Driver, 1 Kas. 455; The State v. Marston, 6 id. 524; The State v. Jefferson Co., 11 id. 66.) As the statute of limitations applies, the next question is, which section is applicable? Counsel for Fuller claims that the limitation of one year controls. The opposite counsel insist that three years, or five years, is the time. Subdivision 4 of §18 reads: “Within one year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for a penalty or forfeiture, except where the statute imposing it prescribes a different limitation.” The statute in express terms provides that when a sheriff is amerced, the order or judgment must be entered against him for the debt, damages and costs, with ten per cent, thereon. (Civil Code, § 472.) It is said in Bond v. Weber, 17 Kas. 410, that § 472 of the code, which provides for the amercement of sheriffs, “is summary and penal in its nature.” In Fisher v. Franklin, 38 Kas. 252, it is said: “ The statute under which this motion was made is of a penal character, and, like all other penal proceedings, strict compliance with the requirements of law must be observed in its [558] enforcement; and when a person desires to avail himself of this proceeding, he caunot complain if he is required to strictly conform to the letter of the law, for when it is enforced it works in many instances great hardship to the officer who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others.” 1. Sheriiff-amercement-action, barred. An action brought to recover damages for the failure of a mortgagee to satisfy a chattel mortgage is an action for a penalty, and barred within one year. (Hall v. Hurd, 40 Kas. 374; and also Hall v. Hurd, 40 id. 740; Joyce v. Means, 41 id. 234.) In our opinion, the motion ' 1 ... to amerce comes within the 4th subdivision of said §18 of the code, and the statute of limitations of one year controls; therefore this proceeding was commenced too late. 3. Execution, must conform to judgment. The objection to the form of the special execution need not be specially commented upon. It appears, however, that the execution had improperly indorsed thereon the words “ without appraisement of lands.” The judgment did not authorize the lands to be sold without appraisement. It is said in Fisher v. Franklin, supra, that where a “plaintiff is seeking to amerce a sheriff, he must show a valid judgment, and the execution must conform strictly to that ^ J judgment.” If the indorsement upon the back of the special execution is considered a part of the execution, or in any way connected with it, the execution in this case did not. conform strictly to the judgment. The order and judgment of the district court will be reversed, and the case remanded for further proceedings, in accordance with the views herein expressed. Valentine, J., concurring.