Northern Drug Co. v. Kunkel

163 N.W. 832, 37 N.D. 285, 1917 N.D. LEXIS 93

Opinions

Bruce, Ch. J.

This is a proceeding to amerce a sheriff under the-provisions of § 7770, Compiled Laws of 1913. The only remissness in duty in any way apparent or urged by counsel for appellant is that the defendant officer failed to return the execution “on or before the return day.” The affidavits, however, show that the sheriff attempted by phone to demand, and actually mailed a letter demanding, his fees in advance, as he was entitled to do under the provisions of § 3548, Compiled Laws of 1913; and that such payment was not made. Even though the receipt of the letter was denied, its mailing was positively testified to; and under these circumstances the officer was under no further obligation to act in the premises, and the proceedings for amercement will not lie. There was no breach of duty.

The judgment of the District Court is affirmed.