Breuer v. Elder

Berry, J. “If any sheriff fails to settle with and pay- over to the person entitled thereto any money he may have collected or received [149] by virtue of any execution, * * * such person may proceed against the sheriff in a summary manner before the district court, by an order upon the sheriff to show cause why he should not pay over such money, and upon the hearing thereof the court shall order such sheriff to pay to the person entitled thereto the amount found due, with twenty per centum thereon as damages for such failure, and may commit such sheriff to the common jail until the order is complied with. * * *” Gen. St. 1878, c. 8, § 198. “If any sheriff neglects to make due return of any writ or other process delivered to him to be executed, or is guilty of any misconduct in relation to the execution thereof, he may be proceeded against by the party interested, in the manner provided in the preceding section, and in addition to requiring the performance of the duty neglected, or the correction of the injury done, the court may impose upon such sheriff a fine, for the use of the county, not exceeding two hundred dollars. * * *” Id. § 199. The proceedings brought before us by the present appeal were instituted under section 199, supra, for “misconduct in relation to the execution” of a writ of execution issued out of the district court of the county of Chisago, and delivered to the appellant, Sloggy, as sheriff of Clay county, for execution. 1. The order to show cause, provided for in section 199, (by reference to section 198,) was properly granted by the judge of the district court from which the execution issued. It was the process of that court, and there was, therefore, a natural and intrinsic propriety in requiring the sheriff to show cause before that court, and in the district where that court sat; and this would appear to be the plain meaning of the statute and the proper mode of procedure, notwithstanding the inconvenience and hardship to which it may sometimes subject a sheriff by compelling him to appear at a distance from his bailiwick. See Griswold v. Chandler, 22 Tex. 637; Smith v. Martin, 20 Kan. 572. 2. As respects the pecuniary amount of the injury suffered by plaintiff, it appears to be undisputed that the appellant sheriff failed to collect any part of the amount of the execution during its life, though there was sufficient property of defendants pointed out to him, out [150] of which he could have made the execution had he been so disposed. It also appears that he made return that after diligent search and inquiry he was unable to find property of defendants on which to levy, and thereupon returned the execution wholly unsatisfied. This return was false, and in an action for it the damages recoverable would, prima facie at least, be the amount of the execution. Bacon v. Gropsey, 7 N. Y. 195. Though the present proceeding is not an action for a false return, there would seem to be some analogy between the two as respects the measure of damages. But if the analogy be doubtful, the affidavits used on the hearing expressly stated that, in consequence of the appellant sheriff’s alleged misconduct, the execution, which he might and should have collected, has become wholly uncollectible, the defendants no longer having any property upon which it could he levied. 3. In view of these considerations, the affidavits used upon the hearing below amply warranted the district court in finding that the appellant sheriff was “guilty of misconduct in relation to the execution of said writ of execution issued to him, * * * and of wilful neglect and violation of his duty as such sheriff, by his refusal, neglect, and failure to levy said execution upon the property of the defendants above named, as commanded by this court in and by said execution, and demanded and repeatedly directed to do by the plaintiffs’ attorneys herein; and that such misconduct, neglect, and violation of duty tended to and did defeat and impair the right and remedies of the plaintiffs herein, and cause an actual loss to them of the full amount of their judgment, interest, and costs herein against the defendants.” 4. Upon the state of facts thus found, the district court, under sections 198 and 199, supra, was authorized to require the “correction” of the injury done, — that is to say, to require the sheriff to make good the loss which his misconduct had occasioned, and “in addition” to impose a fine not exceeding f200 “for the use of the county;” that is to say, of the county from which the process issued, and where process may in a just sense be said to have been disobeyed. And to enforce the “correction” required, and payment of the fine imposed, the court was further authorized, by section 198, to which section 199 refers for the appropriate procedure, to commit the sheriff to the [151] common jail, until its orders were complied with; or, at least, as was done in this instance, unless they were complied with within the reasonable time of 10 days fixed by the court. The action of the district court was in accordance with these views, and therefore in accordance with law, and upon the facts appearing we see no occasion to disturb it. The procedure which the statute authorizes in cases of this kind is necessarily summary and rigorous. The courts must have control of their officers, and power to compel the prompt and faithful execution of their processes. To permit an officer to whom judicial process is issued to set himself up as an independent authority, as such officers are sometimes inclined to do, and execute or not, at his pleasure and leisure or those of the judgment debtor, with impunity, would make the administration of justice a practical mockery; and these and kindred considerations have been acted upon, not only in our legislation, but elsewhere. Rex v. Sheriff of Middlesex, 1 H. Bl. 543; and see 2 Hawk. P. C. c. 22, § 2; Code Ga. 1873, § 3949; Wakefield v. Moore, 65 Ga. 268; Code Ala. (1876) §§ 3356, 3358; Andrews v.Keep, 38 Ala. 315; State v. Tipton, 1 Blackf. 166; Comp. Laws Kan. 1881, § 4003; Smith v. Martin, 20 Kan. 572; Bond v. Weber, 17 Kan. 410; Rev. St. Tex. 1879, §§ 2326, 2327; Griswold v. Chandler, supra. Order affirmed.