Dugan v. Harman

Supreme Court of Kansas

Dugan v. Harman

102 P. 465, 80 Kan. 302, 1909 Kan. LEXIS 65

CourtSupreme Court of Kansas

DecidedJune 5, 1909

DocketNo. 15,936

StatusPublished

Cited by3 cases

This text of 102 P. 465 (Dugan v. Harman) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dugan v. Harman, 102 P. 465, 80 Kan. 302, 1909 Kan. LEXIS 65 (kan 1909).

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Opinions

The opinion of the court was delivered by

Smith, J.:

The only question presented in this case is whether the first two executions issued were void. If these executions were void, the judgments, upon which the two following executions were issued, were dormant, and the executions neither received life from the judgments nor imparted life thereto. (Denny v. Ross, 70 Kan. 720.) If, however, the first two executions were only voidable, they were sufficient to prevent the judgments from becoming dormant.

While the issuing of one execution upon two separate judgments is irregular, it is the opinion of the court, but not of the writer, that if the execution is sufficient [305]*305to identify the two judgments, .or if it contains sufficient recitals to indicate where the records of the judgments can be found and such records fully identify each judgment, the execution is not void. The first two executions recite that Dugan recovered two judgments against W. P. Harman and Lucy A. Harman, on a certain day, and before a certain justice of the peace, for the sum of $368.07, and the further sum of $6.23 as costs of the suit, with interest at the rate of 10 per cent, from April 9, 1898; that afterward Dugan duly filed an abstract of the judgment in the district court, and that there remained unpaid thereon the sum of $368.07, with interest. These recitals are sufficient to direct, any one seeking information about the judgments to the records of the clerk of the district court, as well as to the records of the justice of the peace, which, of course, would give him knowledge of all facts pertaining thereto.

The district court held that the first two executions did not sufficiently identify the two judgments upon which jointly the executions were successively issued, and in this the court erred. The order of the court quashing the two executions issued to the sheriff of Trego county is therefore reversed, and the case is remanded with instructions to deny such motion and to make an order confirming the sale, if the sale is otherwise found to be regular.-

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The opinion of the court was delivered by

Smith, J.:

The only question presented in this case is whether the first two executions issued were void. If these executions were void, the judgments, upon which the two following executions were issued, were dormant, and the executions neither received life from the judgments nor imparted life thereto. (Denny v. Ross, 70 Kan. 720.) If, however, the first two executions were only voidable, they were sufficient to prevent the judgments from becoming dormant.

While the issuing of one execution upon two separate judgments is irregular, it is the opinion of the court, but not of the writer, that if the execution is sufficient [305]*305to identify the two judgments, .or if it contains sufficient recitals to indicate where the records of the judgments can be found and such records fully identify each judgment, the execution is not void. The first two executions recite that Dugan recovered two judgments against W. P. Harman and Lucy A. Harman, on a certain day, and before a certain justice of the peace, for the sum of $368.07, and the further sum of $6.23 as costs of the suit, with interest at the rate of 10 per cent, from April 9, 1898; that afterward Dugan duly filed an abstract of the judgment in the district court, and that there remained unpaid thereon the sum of $368.07, with interest. These recitals are sufficient to direct, any one seeking information about the judgments to the records of the clerk of the district court, as well as to the records of the justice of the peace, which, of course, would give him knowledge of all facts pertaining thereto.

The district court held that the first two executions did not sufficiently identify the two judgments upon which jointly the executions were successively issued, and in this the court erred. The order of the court quashing the two executions issued to the sheriff of Trego county is therefore reversed, and the case is remanded with instructions to deny such motion and to make an order confirming the sale, if the sale is otherwise found to be regular.-

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Bluebook (online)

102 P. 465, 80 Kan. 302, 1909 Kan. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugan-v-harman-kan-1909.

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