Bostwick v. Benedict

Citations

• 4 S.D. 414
• 57 N.W. 78
• 1893 S.D. LEXIS 90

Syllabus

<p>1. A transcript of a judgment rendered in the circuit court of one county, filed in the office of the clerk of the circuit court of another county, as provided in Section 5104, Comp. Laws, operates only as a lien upon the real estate of the defendant in the county in which it is filed.</p> <p>24 The filing of such transcript does not authorize the clerk of the county in which it is so filed to issue execution thereon.</p> <p>3. It seems that the sheriff of such latter county, receiving an execution showing upon its face that it is so issued upon a transcript, but treating it as a valid execution, and collecting money thereon, is estopped from setting up such invalidity in a proceeding for his amercement for his refusing to pay over the money so collected.</p> <p>4. Under Section 5175, Comp. Laws, providing tha't, after issue of execution upon a judgment, any person indebted to the judgment debtor may pay the amount of his debt to the sheriff in discharge thereof, the right of any person so indebted to thus pay is not affected by the fact that such debt has gone into judgment, or that execution has issued thereon, upon which no proceedings have been taken. *</p> <p>5. Money so received by the sheriff is to be treated by him as other money collected on his execution.</p> <p>6. Whatever may be the rights of the creditor whose debt has thus been paid to the sheriff to claim the money so paid as exempt, — as to which quaere, — the sheriff cannot be amerced for paying the same over to the plaintiff in the execution, in the absence of any showing that such creditor claimed, or was entitled to claim, such exemption.</p> <p>(Syllabus by the Court.</p>