Winston, Harper, Fisher Co. v. Price

North Dakota Supreme Court

Winston, Harper, Fisher Co. v. Price

164 N.W. 101, 37 N.D. 554, 1917 N.D. LEXIS 120

DecidedJuly 25, 1917

StatusPublished

This text of 164 N.W. 101 (Winston, Harper, Fisher Co. v. Price) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Winston, Harper, Fisher Co. v. Price, 164 N.W. 101, 37 N.D. 554, 1917 N.D. LEXIS 120 (N.D. 1917).

Pincite

Opinion

Robinson, J.

This is an appeal from an order of the county court of Wells county denying a motion to amerce the sheriff for a failure to levy an execution on real property in Kidder county. The execution was for $11.02. The sheriff refused to make the levy for the reason that the judgment had not been docketed in his county. The sheriff was perfectly right. The statute is that when an execution is against the property of a judgment debtor it may be issued to the sheriff of any county where the judgment is docketed. Comp. Laws 1913, § 7715. And when a judgment is rendered by a county court a certified transcript of the same may be filed in the office of the clerk of the district court and the judgment docketed therein, and from the time of docketing it becomes a judgment of the district court for the purpose of an execution and a lien upon real property owned by the judgment debtor. Then the clerk of the district court may give a [556]*556certified transcript of the judgment to be docketed in any other county, and no execution shall issue out of the county court upon any judgment upon which an abstract has been issued and filed in the district court. Comp. Laws 1913, '§ 8943. The sheriff was clearly right.

And this, for himself, the writer declares: That it is in no way proper for an attorney to belittle himself and the court by taking an appeal on such a small matter; and also that the statute in regard to the amercement of a sheriff is of barbarous and despotic origin, and it is contrary to the spirit of our Constitution, and the amercement or fine should never be imposed except in cases of grave and wilful fault, resulting in grave injury. The true purpose of the law is to administer fair and honest and honorable justice, and not to aid in robbing a sheriff or a bank or any party. The order is affirmed, with costs.

Grace, J. I concur in the result.

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Robinson, J.

This is an appeal from an order of the county court of Wells county denying a motion to amerce the sheriff for a failure to levy an execution on real property in Kidder county. The execution was for $11.02. The sheriff refused to make the levy for the reason that the judgment had not been docketed in his county. The sheriff was perfectly right. The statute is that when an execution is against the property of a judgment debtor it may be issued to the sheriff of any county where the judgment is docketed. Comp. Laws 1913, § 7715. And when a judgment is rendered by a county court a certified transcript of the same may be filed in the office of the clerk of the district court and the judgment docketed therein, and from the time of docketing it becomes a judgment of the district court for the purpose of an execution and a lien upon real property owned by the judgment debtor. Then the clerk of the district court may give a [556]*556certified transcript of the judgment to be docketed in any other county, and no execution shall issue out of the county court upon any judgment upon which an abstract has been issued and filed in the district court. Comp. Laws 1913, '§ 8943. The sheriff was clearly right.

And this, for himself, the writer declares: That it is in no way proper for an attorney to belittle himself and the court by taking an appeal on such a small matter; and also that the statute in regard to the amercement of a sheriff is of barbarous and despotic origin, and it is contrary to the spirit of our Constitution, and the amercement or fine should never be imposed except in cases of grave and wilful fault, resulting in grave injury. The true purpose of the law is to administer fair and honest and honorable justice, and not to aid in robbing a sheriff or a bank or any party. The order is affirmed, with costs.

Grace, J. I concur in the result.

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Bluebook (online)

164 N.W. 101, 37 N.D. 554, 1917 N.D. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winston-harper-fisher-co-v-price-nd-1917.