Honce v. Schram

Citations

• 73 Kan. 368
• 85 P. 535
• 1906 Kan. LEXIS 260

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Proceeding in Aid op Execution — Action of Probate Court —Review by District Court. In a proceeding in aid of execution the probate judge acts as a subordinate officer of the district court from which the execution is issued, and in the supervision of the probate judge’s action the court exercises original, rather than appellate, jurisdiction.</p> <p>2. -Method of Invoking Jurisdiction of District Court. Where such supervision was invoked by what was termed a “petition in error,” and the court gave such consideration to the proceedings of the probate judge as would have been given on a formal application, it cannot be held that its action was void or that any one was prejudiced by the informality.</p> <p>3. --- Basis for the Proceeding. An abstract of a judgment of a justice of the peace duly filed in the district court is a sufficient basis for a proceeding in aid of execution.</p> <p>4. Judgments — Payment by a Surety — Subrogation—Contribution. Under section 480 of the civil code (Gen. Stat. 1901, § 4926) a surety who has paid a judgment may have the benefit of such judgment, not only to compel repayment from the principal, but also to enforce contribution against other sureties jointly liable with him on the judgment.</p> <p>5. -Assignment to a Surety — Satisfaction. The payment of such judgment by one of the sureties against whom it was rendered, and the taking of an assignment of the judgment to himself, did not operate as a satisfaction of the judgment against the other judgment debtors.</p> <p>6. Proceeding in Aid op Execution — Rights of Third Parties to Ownership of Assets. While the rights of third parties as to the ownership of assets sought to be subjected to the payment of a judgment cannot be finally determined in this summary proceeding, the mere fact that property is in the hands of others than the judgment debtor, or that a colorable dispute as to the ownership arises, does not deprive the judge of power to proce