Gleason v. Itten

The opinion of the court was delivered by Hoeton, C. J.: This was a proceeding in the court below to amerce the sheriff of McPherson county for his failure to return an execution. The defendant below filed his brief within the time prescribed, and also made an elaborate oral argument upon the hearing. The plaintiff below has not filed any brief, and no oral or other argument has been presented in his behalf. In this case the execution debtors had no property in McPherson county whereon to levy the exe [220] cution issued to the sheriff of that county, and therefore the neglect of the official duty, of which the plaintiff below complains, has done him no actual injury. The judgment was rendered in Saline county on May 24, 1886, but was not entered of record until the 12th of March, 1889, and then upon a nunc pro twno order. It was for $750 damages, together with the costs, taxed at that time at $217.25. Execution was issued on the 9th of April, 1889, and recited the judgment of the 24th pf May, 1886, for $750 damages, and $220.90 as costs. The judgment docket at that time showed the rendition of the judgment, and costs taxed at $217.25, and additional costs of $5.70. The clerk, in explaining the judgment docket, stated that he could give no reason for certain costs therein taxed, but added that the additional costs, at the time of issuing the execution on the 9th of April, 1889, including the costs of the execution, amounted to $3.65, making the total costs on the 9th of April, 1889, $220.90. The statute makes it the duty of the clerk of the court to tax the costs to be inserted in the judgment, but the costs so taxed and inserted, as of the date of the judgment, should only include the costs up to and inclusive of the rendition of the judgment. The costs after the rendition of the judgment should be indorsed upon or referred to as accruing or additional costs. Generally, a part of the execution reads: “Whereas, on the-day of-, 18 — , A. B., plaintiff, recovered a judgment in the said district court of the state of --■, in and for the-, county of-, against-C. D., for the sum of-dollars damages, with interest at the rate of- per cent. - till paid, together with costs of $-, at the date of said judgment, and accruing costs of $-, amounting in all to the sum of-dollars, lawful money of the United States, as appears to us of record.” The execution, if it had been issued in the usual form, would have recited the judgment of $750, and the costs of $217.25, of the date of the judgment; and the accruing or additional costs, whatever they were, would have been indorsed upon or referred to in the execution as accruing or additional [221] costs. The execution, therefore, did not conform strictly to the judgment rendered. It stated a greater amount of costs than the actual amount due or taxed at the date of the judgment. Within the authority of Fisher v. Franklin, 38 Kas. 251, and Fuller v. Wells, 42 id. 551, the judgment will be reversed, and the cause remanded. All the Justices concurring.