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…
1DissentWells, J.
I am not prepared to concur in the majority opinion in this case; it seems to me that the reasoning is faulty and the conclusion inequitable and unjust. If the Sheriff had money in his hands belonging to the debtor, he had a right to take it under his execution. This is admitted in Turner v. Fendell (1 Cranch, 45), in which the eminent Chief Justice argued that the money did not become the property of the execution creditor until it was actually paid him, but previous to its delivery it was a debt. While this reasoning was sound and in harmony with the strict rules of construction maintained…
2Cases cited3 opinions
- Wilson v. MasonSupreme Court of the United States · 1801
- Ex parte FearleSupreme Court of Missouri · 1850
- Scott, Kerr & Co. v. SmithSupreme Court of Kansas · 1864