S.F. Corrugating Co. v. Gurius

259 N.W. 275, 63 S.D. 385, 1935 S.D. LEXIS 16

Opinion

This is a proceeding to amerce a sheriff under the provisions of section 2650, R.C. 1919. The court upon a sufficient showing concluded as follows: "That the said sheriff cannot be amerced for failure to make return on an execution placed in his hands for levy where there is no property belonging to the judgment debtor in the said sheriff's county subject to levy." This conclusion is correct unless this court at this time wishes to depart from the rule announced in the case of Swenson v. Christoferson, 10 S.D. 188, 72 N.W. 459, 66 Am. St. Rep. 712. We appreciate that the rule announced in the above-cited case is not the rule followed by all jurisdictions. See Lee v. Dolan, 34 N.D. 449, 158 N.W. 1007. However, the rule has been established in this state since 1897 and does have some support in the authorities, and we are not inclined to depart therefrom.

The order appealed from is affirmed.

All the Judges concur.