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county wherein E. H. Skaggs was plaintiff, and E. J. Myers, Herman Markson, as administrator of the estate of J. J. Myers, deceased, and F. Kothman, and others were defendants. The sheriff retained of the $664.89 the sum of $352.20 as costs, and paid out the balance, $312.69, to redeem the land sold by him under a special execution from taxes. It seems to be admitted that the sheriff properly retained the costs, excepting $246.20, which E. M. and E. H. Skaggs were adjudged to pay. The costs made by E. H. and E. M. Skaggs, in the action of E. H. Skaggs against E. J. Myers and others, were no lien upon the premises sold by the sheriff, and ought not to have been indorsed upon the special execution issued December 30, 1882; nor ought such costs to have been retained by the sheriff from the proceeds of the sale of the land. E. H. and E. M. Skaggs were totally defeated in the action of foreclosure; the mortgage under which they claimed being declared fraudulent. The real estate attached by Kothman was not liable in any respect for the costs made by the Skaggs in their attempt to enforce their void mortgage. Judgment was rendered against them for these identical costs, and that judgment has never been reversed or set aside. These costs stand against the Skaggs, and upon no principle that we can conceive of are the lands of the Myers estate, or their proceeds, liable therefor. Notwithstanding all this, the sheriff ought not to be amerced for refusing or neglecting to pay over to the plaintiff the $246.20 retained as costs, for the reason that Kothman's attorney placed in his hands the execution upon which there were indorsed costs to the amount of $367.35. The said $246.20 are a part of the same. These costs were not coming or due to Kothman, and while it is true that the sheriff might, by the direction of Kothman or his attorney, be restrained or limited in the execution of the process placed in his hands to any act which was within his general authority under the execution, neither Kothman nor his attorney could, after the sale of the real estate mentioned in the execution, and the confirmation thereof, arbitrarily direct him concerning the costs taxed by the clerk, and indorsed upon the writ. Instead of attempting to amerce the sheriff for retaining the $246.20 as costs, Kothman should have had his writ corrected, or the costs retaxed by the court, or proceeded by some other means to have the costs for which E. H. and E. M. Skaggs are liable separated from the other costs in the case.

The statute authorizing the amercement of a sheriff must be proceeded under with great strictness, and he who would avail himself of the remedy must bring himself both within the letter and spirit of the law. The remedy is summary and its consequences highly penal. In the matter of these costs the sheriff attempted to comply with the very terms of the process placed in his hands, and it would be grossly unjust to say that, because he followed the directions of this process issued by the court of which he is the officer, that he must pay to Kothman, who put such writ in his hands, the costs demanded, together

with penalties. We cannot ascertain from the findings that, prior to the sale of the land under the special execution, that either Kothman or his attorney gave any instructions to the sheriff concerning these costs, or made any request upon the sheriff that he should not collect the same. Indeed, we do not perceive from the record that the plaintiff gave any directions whatever to the sheriff outside of the terms of the writ, until he had executed the same so far as selling the land therein described.

As to the refusal of the sheriff to turn over to Kothman the sum of $312.69, alleged to have been paid out by him for the redemption of the land from the taxes for the years 1879, 1880, and 1881, we reach a different conclusion. The special execution of December 30, 1882, and the judgment upon which it was issued, commanded the sheriff to pay all the legal taxes due on the land before paying any of the proceeds of the sale to Kothman. The land was sold to Elise Bornhauser on February 10, 1883, for $3,225. Before the confirmation of the sale, she had sold the land for $5,500, and agreed with Kothman to take up the outstanding tax titles and certificates. On May 9, 1883, her sale was confirmed, and a sheriff's deed ordered to be executed to her. After making her bid upon the premises at the sheriff's sale, Mrs. Bornhauser purchased of one Osborn the outstanding tax titles and tax certificates for $1,500, and then made application to the district court for an order on the sheriff to pay the taxes on the land for 1879, 1880, and 1881. After the confirmation of her sale, and on May 19, 1883, her motion was overruled, yet subsequently the sheriff paid $312.69 to redeem the land from the said taxes for 1879, 1880, and 1881. At this time he knew of the agreement between Mrs. Bornhauser and Kothman; that she was to take up all the outstanding tax titles and certificates upon the premises, and also knew that the tax certificates had been purchased by and then belonged to her. The purchase of the tax certificates by Mrs. Bornhauser, under her agreement with Kothman, was a redemption of the land from the taxes embraced therein, and there were no legal taxes against the premises on May 21, 1883, to be paid by the sheriff. The very money which the sheriff paid to the county treasurer was delivered by the treasurer over to Mrs. Bornhauser, and the sheriff might as well have paid the money directly to her as to have made the payment in the circuitous manner he did. Again, the payment by the sheriff to take up the tax certificates of 1879, 1880, and 1881, held by Mrs. Bornhauser, was against the objection of Kothman, and over his offer to indemnify him; hence there was no reasonable excuse for his action. The writ in his hands did not justify him to pay these taxes, because the land had already been redeemed by Mrs. Bornhauser.

Kothman, for whose benefit the execution was issued, protested against the payment of these taxes, and went so far as to offer to give bond to save the sheriff harmless. For some reason, unexplainable

to us, the sheriff disregarded the instructions of Kothman, and, ignoring the agreement between Kothman and Mrs. Bornhauser, improperly paid out $312.69 from the moneys received by him upon the execution. For this sum the sheriff should be amerced, with damages and costs. The order of the district court, made June 2, 1883, ratifying the acts of the sheriff in redeeming the land from the tax-sale certificates owned by Mrs. Bornhauser, is no protection to him; for it was made without notice to Kothman, the party interested, and was also made after the confirmation of the sheriff's sale, and after the district court had overruled the motion of Mrs. Bornhauser directing the sheriff to pay these taxes. After the confirmation of the sale and the direction to the sheriff for the execution of a deed to Mrs. Bornhauser, the matters affecting the sale of the land were closed, and unless reopened or set aside, upon motion with notice, could not again come up in the court for consideration, or in any way affect the rights of Kothman.

It is urged that the agreement between Kothman and Mrs. Bornhauser was without consideration, but this agreement was made before the confirmation of the sale, and Kothman might have interposed objections to the confirmation but for the arrangement with Mrs. Bornhauser. After Mrs. Bornhauser took up the tax certificates for 1879, 1880, and 1881, and thereby redeemed the land from all taxes. due thereon, the public had no interest in having the sheriff or any other person return to her any part of the money paid. In law, the taxes had all been satisfied.

Finally, as another reason for denying the motion of Kothman to amerce the sheriff, it is urged that as the written demand was for the gross sum of $664.89, the notice to the sheriff was not in accordance with the statute. We do not think that a notice and motion, under the provisions of section 472 of the Code, is insufficient simply because the amount therein named is overstated. Of course, upon hearing, the sheriff is to be amerced only for the exact sum which is due the party instituting the proceedings, but the motion filed in this case specifically sets forth that Kothman claims $312.69, "retained by the sheriff out of the proceeds of the sale of the lands." Therefore, as to this sum, the sheriff had actual notice of the exact amount demanded.

The judgment of the district court will be reversed and the cause remanded, with directions to the court below to amerce Prest, as sheriff, in the amount of $312.69 and costs, with 10 per cent. thereon, to and for the use of Kothman.

(All the justices concurring.)

(34 Kan. 125)

MISSOURI PAC. RY. Co. and another v. MALTBY and another.

Filed October 9, 1885.


In a proceeding in garnishment, where all the parties are non-residents of the state of Kansas, and are residents of the state of Missouri, and the thing attempted to be attached by the garnishment proceedings is a debt created and payable in the state of Missouri, but the garnishee does business in Kansas, and is liable to be garnished in this state, and the other parties come temporarily into Kansas, and, while in Kansas, the plaintiff, who is a creditor of the defendant, who is a creditor of the garnishee, commences an action in Kansas against the defendant, and serves a garnishment summons upon the garnishee, and the debt of the garnishee to the defendant is, by the laws of the state of Missouri, exempt from garnishment process, and such debt also seems to come within the exemption provisions contained in section 490 of the Civil Code of Kansas, and section 157 of the Justices Code of Kansas, exempting certain earnings of the debtor from the enforced payment of his debts, held, that such debt is exempt from garnishment process in Kansas.

Error from Bourbon county.

David Kelso and J. H. Sallee, for plaintiffs in error.
Ware & Ware, for defendants in error.

VALENTINE, J. This was an action brought in the district court of Bourbon county, Kansas, by W. J. Maltby and A. N. Maltby, partners as Maltby & Co., against the Missouri Pacific Railway Company and George W. Ridgway, to recover $116.40 from the railway company because of its failure to answer as garnishee in an action brought by Maltby & Co. against Ridgway, before a justice of the peace of said county. Ridgway and his family and Maltby & Co. were all residents of Sedalia, Missouri, and the railway company was a Missouri corporation, but had been consolidated, under the laws of Kansas, with two Kansas railway companies, and did business and operated railroads in Kansas. The action brought before the justice of the peace was for groceries sold and delivered by Maltby & Co. to Ridgway, at Sedalia, Missouri. The garnishee summons was served on the agent of the railway company in Bourbon county, Kansas, on July 10, 1883, and the original summons was served personally on Ridgway in the same county on July 17, 1883. The defendant Ridgway appeared personally before the justice of the peace and also by counsel, and judgment was rendered against him and in favor of Maltby & Co. for $258.68. The railway company did not appear within proper time, but afterwards appeared and filed a paper with the justice of the peace, claiming that it was not liable as garnishee; that the court had no jurisdiction over it; and that the sum due from it to Ridgway, to-wit, $58.20, was exempt from judicial process. The justice, however, refused to act upon the paper. At the time of the service of the garnishment summons upon the railway company it owed Ridgway just $58.20. Afterwards Maltby & Co. commenced this present action against the railway company, also making Ridgway a defendant, claiming from the railway company $116.40, be

cause of its refusal to answer as garnishee, as aforesaid. The railway company and Ridgway answered in this action separately, each, however, claiming that the debt due from the railway company to Ridgway was exempt from judicial process; that the railway company was not liable to be garnished for the same; and that the railway company was not liable in the action.

The case was tried before the district court without a jury, upon an agreed statement of facts. Among the facts admitted were the following:

"The money due from the said railway company was for the personal earnings of said Ridgway, and was due to him within sixty days of the beginning of this suit, and was for his personal earnings as engineer upon said railway in Missouri, and necessary for the support of himself and family, and said wages are and were exempt from garnishment by the laws of the state of Missouri." "The family of said Ridgway consists of a wife and one child, who are dependent upon him for their support." "Plaintiffs admit that an action could have been brought in the state of Missouri against said Ridgway, except while he was absent from the state, and that personal service could have been had on said Ridgway in said state, both before and after said suit was begun in Kansas, and that a garnishment summons might have been served in said state upon the defendant railway therein, and that garnishment proceedings against the defendant railway company might have been instituted in the state of Missouri, and that, if such proceedings had been instituted, the defendant Ridgway would have, by reason of the exemption laws of the state of Missouri, entirely defeated the collection of the plaintiff's claim."

Upon the agreed statement of facts the court below rendered judgment in favor of Maltby & Co. and against the railway company for $58.20, and interest, amounting in all to $62.25, and costs. A motion was made for a new trial and overruled, and proper exceptions were taken, and the defendants, the Missouri Pacific Railway Company and Ridgway, now bring the case to this court for review.

The first and principal question which seems to be involved in this case is whether the debt due from the railway company to Ridgway was and is exempt from garnishment process or not. It seems to be admitted by the parties that the laws of a state, including exemption laws, can have no extraterritorial force; that no law can be imported into one state from another; yet that all actions for debts, or actions upon contract, wherever they arise, are transitory in their character and may be brought in any jurisdiction where the debtor or his property may be found; also that corporations doing business in this state, whether domestic or foreign, may be garnished in this state, and may be garnished by either a resident or non-resident plaintiff, and may also be garnished whether the action arose in this state or elsewhere, and whether the defendant is a resident or nonresident of the state: provided, of course, that the debt, or thing attempted to be held in garnishment, is or may be the subject of garnishment proceedings; and it has been held by this court that a foreign corporation doing business in this state may be garnished by a

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