Public-domain · open source
OpenJurist

17 Kan. 306

Shultz v. Smith

Supreme Court of Kansas

Decided July 15, 1876

Supreme Court of Kansas · decided 1876-07-15

Fh'-ror from Howard District Court. A degree of foreclosure and sale was rendered at the October Term 1874 of the Howard district court, in an action wherein Shultz was plaintiff, and Smith and wife were defendants.

Key passage — most relied on by later courts

““The sheriff or other officer to whom any writ of execution shall be directed shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.’-’”

quoted by 1 later decision, including Norton v. Reardon

Relies on Haggerty v. Wilber · Vail v. Lewis

Good law ✅— No negative treatment on recordhow we know

Decided 1876-07-15

How this case has been cited

Cited by 4 later decisions — most recently July 1931

4 state decisions

201876188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Valentine, J.:

¶2The only question presented for our consideration in this case is, whether the court below erred in setting aside a certain sheriff sale. Indeed, about the only question is, whether a sheriff can legally and properly sell real estate on execution after the return-day of the execution, añd more than sixty days after its date and after it was issued. The execution in this case was issued and dated -November 24th 1874, and made returnable in sixty days, and the sale was made on January 27th 1875. Section 469 of the civil code provides that, “The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.” (Gen. Stat. 720.) And §472 of the same code provides among other things that, “ If any sheriff or other officer … shall neglect to return any writ of execution to the proper court, on or before the return-day thereof, … such sheriff or other officer shall, on motion in court, and two days’ notice thereof, in writing, be amerced,” etc. (Gen. Stat. 721,722.) And all the authorities upon the subject seem to indicate that no valid act can be done by an officer under an execution after the return-day thereof, except to return the writ. Vail v. Lewis, 4 Johns. 450; Haggarty v. Wilber, 16 Johns. 287; Devoe v. Elliott, 2 Caines, *308243; Barnard v. Stevens, 2 Aikins, 429; Matthews v. Warne, 11 N. J. L. (6 Halstead) 29; The State v. Kennedy, 18 N. J. L. (3 Harrison) 22; Crews v. Garland, 2 Munford (Va.) 491.

¶3We think the sheriff had no authority to sell said property at the time he sold it, and therefore that the sale was at least voidable, if not void. The property probably did not bring as fair a price as it would have brought if everything had been regular and valid. The judgment-debtor, the defendant in error in this court, whose property was sold, attacked said sale in a direct manner, and at his earliest opportunity, by moving the court to have the sale set aside, and therefore if the sale was only voidable we think he had a' right to have it set aside.

¶4The order of the district court will be affirmed.

Brewer, J., concurring.
/17/kan/306 · .json · Public domain