E. J. Beach & Sons v. Fitzgerald

DlBELL, J. This is a summary proceeding under G. S. 1913, § 929, to compel James Fitzgerald, the sheriff of Wilkin county, to pay to the plaintiff money collected upon an execution. The court denied the plaintiff relief and it appeals. On August 22, 1922, the sheriff collected $67.79 on an execution in favor of the plaintiff. On the same day he was garnished in an action against the plaintiff. He notified the plaintiff’s attorneys. The plaintiff did not appear in the garnishment proceedings. Later [370] judgment was entered against the plaintiff in this action, and against the sheriff as garnishee for $24.03. No appeal was taken and on October 25, 1922, he paid the judgment and remitted the $67.79, less the judgment, to the plaintiff’s attorneys. The rule is that if there is a fair doubt as to the liability of the sheriff the summary proceeding under the statute is not the proper one and the 'party aggrieved must seek relief in an ordinary civil action. Hull v. Chapel, 71 Minn. 408, 74 N. W. 156; Deering & Co. v. Burke, 74 Minn. 80, 76 N. W. 1020; J. H. Allen & Co. v. Christensen, 111 Minn. 414, 127 N. W. 185. The controversy is before us on affidavits. From them, and the papers referred to in them, the trial court was not required to find a breach of duty by the sheriff. When garnished he immediately notified the attorneys of the plaintiff, a nonresident. Judgment was entered, and after the time for appeal expired, and when he was subject to execution, he paid. We do not consider whether he was subject to garnishment. So far as appears the proceedings were regular. The plaintiff was free to make such defense as it had. The sheriff was not derelict in not doing more than he did or in not acting differently. Order affirmed.