Eaton v. McElhone
Court of Appeals of Kansas
Error from Smith District Court. Hon. Cyrus Heren, Judge. Eaton, the plaintiff in error, recovered judgment in the Smith County District Court. Execution was issued to the defendant McElhone, as Sheriff of Smith County, on this judgment. The Sheriff collected the judgment.
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Error from Smith District Court. Hon. Cyrus Heren, Judge. Eaton, the plaintiff in error, recovered judgment in the Smith County District Court. Execution was issued to the defendant McElhone, as Sheriff of Smith County, on this judgment. The Sheriff collected the judgment. Without the consent of Eaton, he applied $173.82 of the money to the payment of a tax warrant held by him as Sheriff, and returned the remainder of the money, and his receipt as Sheriff for the taxes, purporting to be a receipt to Eaton, into court. Demand upon him made by Eaton’s attorneys for the $173.82 was refused. A…
1Opinion of the CourtMahan, P. J.
The only question involved in this case is the right of the Sheriff to appropriate money which he had collected upon exection, during the life of the execution and before its return, to the satisfaction of another writ then in his hands for execution. The money was in the custody of the law and could not be seized upon execution. The Sheriff had no specific money or other property of the plaintiff Eaton upon which he could levy. Even if such a tax warrant is within the provisions of section 486 of the Code, which is doubtful, he was not indebted to Eaton so that he might under the provisions…
2Cases cited3 opinions
- Wilson v. MasonSupreme Court of the United States · 1801
- Clymer v. WillisCalifornia Supreme Court · 1853
- Scott, Kerr & Co. v. SmithSupreme Court of Kansas · 1864