had agreed with the attorney for Kothman, before the confirmation of the sale to her, that she would pay off the outstanding tax titles and taxes, as well as her bid of $3,225, which $3,225 should be for the interest of the Myers estate alone; and said sheriff then knew of said agreement in regard to said bid. (12) That after said purchase money was used by said sheriff to redeem said tax-sale certificates, and on the second day of June, 1883, said sheriff made an additional return on said writ, which is referred to as part hereof. (13) That on the second day of June, 1883, said sheriff procured an order of this court ratifying his acts in paying said tax-sale certificates, as appears in Journal 22, p. 379, and which is referred to as a part of this finding. (14) That of the proceeds of said south-east quarter said sheriff has paid to the attorney for Kothman the sum of $2,291.50; that he has retained his costs on said execution, $91.55, and paid to the treasurer of Leavenworth county $162.10 for taxes held by said county, and has paid said $312.69 for redeeming said tax-sale certificates, and also retains the sum of $367.35, the costs indorsed on said execution; that of the said $367.35, the sum of $106.00 is the costs of the original judgment of Kothman v. J. J. Myers, and said sum of $106.00 was included in the judgment of Kothman for $17,286.50; that of said $367.35 the sum of $246.20 is for the costs of this action incurred up to the thirtieth day of April, 1881, the time of the rendition of the judgment against E. H. Skaggs and E. M. Skaggs for costs, and that of said $367.35 the sum of $15.15 is for costs incurred subsequent to the rendition of said judgment against E. H. Skaggs and E. M. Skaggs. (15) That since said sheriff has retained $367.35, said Kothman has demanded of said sheriff that he pay to said Kothman, or his attorney, said sum of $106.00, the costs in Kothman v. J. J. Myers, and the sum of $246.20, the amount of costs in this action up to and including the rendition of the judgment against E. H. Skaggs and E. M. Skaggs, and has also demanded of said sheriff said sum of $312.69 so paid by said sheriff for the redemption of said tax-sale certificates; that said sheriff has offered to pay the clerk the costs subsequent to April 30, 1881, but the clerk refused to receive the same unless the sheriff would pay him the entire sum of $367.35. (16) That said Kothman, after the refusal of said sheriff, Prest, to pay him said sums of $312.69 and $352.20, filed his motion on January 9, 1884, to amerce said sheriff and gave him notice as required by law, which motion to amerce is referred to as a part of this finding. And thereon the court made the following conclusions of law: (1) That said sheriff was not bound to follow the outside agreements of parties interested, but must obey the writ in his hands to be executed. (2) The motion to amerce should be overruled, at the costs of Kothman. Judgment was then rendered overruling the motion, and that John W. Prest recover all costs from Kothman. Kothman filed his motion to vacate and set aside the findings and judgment of the court, and for a new trial. This was overruled. Kothman excepted to the rul ings and judgment of the court and brings the case here. H. T. Green, for plaintiff in error. H. W. Ide, for defendant in error. HORTON, C. J. This was a proceeding in the district court of Leavenworth county by F. Kothman to amerce John W. Prest, sheriff of said county, for refusing and neglecting to pay, on demand, to the plaintiff in error $664.89, collected by him, with other moneys, upon a special execution or order of sale in an action tried in Leavenworth county wherein E. H. Skaggs was plaintiff, and E. J. Myers, Herman Markson, as administrator of the estate of J. J. Myers, deceased, and F. Kothman, and others were defendants. The sheriff retained of the $664.89 the sum of $352.20 as costs, and paid out the balance, $312.69, to redeem the land sold by him under a special execution from taxes. It seems to be admitted that the sheriff properly retained the costs, excepting $246.20, which E. M. and E. H. Skaggs were adjudged to pay. The costs made by E. H. and E. M. Skaggs, in the action of E. H. Skaggs against E. J. Myers and others, were no lien upon the premises sold by the sheriff, and ought not to have been indorsed upon the special execution issued December 30, 1882; nor ought such costs to have been retained by the sheriff from the proceeds of the sale of the land. E. H. and E. M. Skaggs were totally defeated in the action of foreclosure; the mortgage under which they claimed being declared fraudulent. The real estate attached by Kothman was not liable in any respect for the costs made by the Skaggs in their attempt to enforce their void mortgage. Judgment was rendered against them for these identical costs, and that judgment has never been reversed or set aside. These costs stand against the Skaggs, and upon no principle that we can conceive of are the lands of the Myers estate, or their proceeds, liable therefor. Notwithstanding all this, the sheriff ought not to be amerced for refusing or neglecting to pay over to the plaintiff the $246.20 retained as costs, for the reason that Kothman's attorney placed in his hands the execution upon which there were indorsed costs to the amount of $367.35. The said $246.20 are a part of the same. These costs were not coming or due to Kothman, and while it is true that the sheriff might, by the direction of Kothman or his attorney, be restrained or limited in the execution of the process placed in his hands to any act which was within his general authority under the execution, neither Kothman nor his attorney could, after the sale of the real estate mentioned in the execution, and the confirmation thereof, arbitrarily direct him concerning the costs taxed by the clerk, and indorsed upon the writ. Instead of attempting to amerce the sheriff for retaining the $246.20 as costs, Kothman should have had his writ corrected, or the costs retaxed by the court, or proceeded by some other means to have the costs for which E. H. and E. M. Skaggs are liable separated from the other costs in the case. The statute authorizing the amercement of a sheriff must be proceeded under with great strictness, and he who would avail himself of the remedy must bring himself both within the letter and spirit of the law. The remedy is summary and its consequences highly penal. In the matter of these costs the sheriff attempted to comply with the very terms of the process placed in his hands, and it would be grossly unjust to say that, because he followed the directions of this process is sued by the court of which he is the officer, that he must pay to Kothman, who put such writ in his hands, the costs demanded, together with penalties. We cannot ascertain from the findings that, prior to the sale of the land under the special execution, that either Kothman or his attorney gave any instructions to the sheriff concerning these costs, or made any request upon the sheriff that he should not collect the same. Indeed, we do not perceive from the record that the plaintiff gave any directions whatever to the sheriff outside of the terms of the writ, until he had executed the same so far as selling the land therein described. As to the refusal of the sheriff to turn over to Kothman the sum of $312.69, alleged to have been paid out by him for the redemption of the land from the taxes for the years 1879, 1880, and 1881, we reach a different conclusion. The special execution of December 30, 1882, and the judgment upon which it was issued, commanded the sheriff to pay all the legal taxes due on the land before paying any of the proceeds of the sale to Kothman. The land was sold to Elise Bornhauser on February 10, 1883, for $3,225. Before the confirmation of the sale, she had sold the land for $5,500, and agreed with Kothman to take up the outstanding tax titles and certificates. On May 9, 1883, her sale was confirmed, and a sheriff's deed ordered to be executed to her. After making her bid upon the premises at the sheriff's sale, Mrs. Bornhauser purchased of one Osborn the outstanding tax titles and tax certificates for $1,500, and then made application to the district court for an order on the sheriff to pay the taxes on the land for 1879, 1880, and 1881. After the confirmation of her sale, and on May 19, 1883, her motion was overruled, yet subsequently the sheriff paid $312.69 to redeem the land from the said taxes for 1879, 1880, and 1881. At this time he knew of the agreement between Mrs. Bornhauser and Kothman; that she was to take up all the outstanding tax titles and certificates upon the premises, and also knew that the tax certificates had been purchased by and then belonged to her. The purchase of the tax certificates by Mrs. Bornhauser, under her agreement with Kothman, was a redemption of the land from the taxes embraced therein, and there were no legal taxes against the premises on May 21, 1883, to be paid by the sheriff. The very money which the sheriff paid to the county treasurer was delivered by the treasurer over to Mrs. Bornhauser, and the sheriff might as well have paid the money directly to her as to have made the payment in the circuitous manner he did. Again, the payment by the sheriff to take up the tax certificates of 1879, 1880, and 1881, held by Mrs. Bornhauser, was against the objection of Kothman, and over his offer to indemnify him; hence there was no reasonable excuse for his action. The writ in his hands did not justify him to pay these taxes, because the land had already been redeemed by Mrs. Bornhauser. Kothman, for whose benefit the against the payment of these taxes, bond to save the sheriff harmless. execution was issued, protested and went so far as to offer to give For some reason, unexplainable to us, the sheriff disregarded the instructions of Kothman, and, ignoring the agreement between Kothman and Mrs. Bornhauser, improperly paid out $312.69 from the moneys received by him upon the execution. For this sum the sheriff should be amerced, with damages and costs. The order of the district court, made June 2, 1883, ratifying the acts of the sheriff in redeeming the land from the tax-sale certificates owned by Mrs. Bornhauser, is no protection to him; for it was made without notice to Kothman, the party interested, and was also made after the confirmation of the sheriff's sale, and after the district court had overruled the motion of Mrs. Bornhauser directing the sheriff to pay these taxes. After the confirmation of the sale and the direction to the sheriff for the execution of a deed to Mrs. Bornhauser, the mitters affecting the sale of the land were closed, and unless reopened or set aside, upon motion with notice, could not again come up in the court for consideration, or in any way affect the rights of Kothman. It is urged that the agreement between Kothman and Mrs. Bornhauser was without consideration, but this agreement was made before the confirmation of the sale, and Kothman might have interposed objections to the confirmation but for the arrangement with Mrs. Bornhauser. After Mrs. Bornhauser took up the tax certificates for 1879, 1880, and 1881, and thereby redeemed the land from all taxes due thereon, the public had no interest in having the sheriff or any other person return to her any part of the money paid. In law, the taxes had all been satisfied. Finally, as another reason for denying the motion of Kothman to amerce the sheriff, it is urged that as the written demand was for the gross sum of $664.89, the notice to the sheriff was not in accordance with the statute. We do not think that a notice and motion, under the provisions of section 472 of the Code, is insufficient simply because the amount therein named is overstated. Of course, upon hearing, the sheriff is to be amerced only for the exact sum which is due the party instituting the proceedings, but the motion filed in this case specifically sets forth that Kothman claims $312.69, "retained by the sheriff out of the proceeds of the sale of the lands." Therefore, as to this sum, the sheriff had actual notice of the exact amount demanded. The judgment of the district court will be reversed and the cause remanded, with directions to the court below to amerce Prest, as sheriff, in the amount of $312.69 and costs, with 10 per cent. thereon, to and for the use of Kothman. (All the justices concurring.) (34 Kan. 125) MISSOURI PAC. RY. Co. and another v. MALTBY and another. Filed October 9, 1885. GARNISHMENT-DEBT EXEMPT BY LAW OF ANOTHER STATE. In a proceeding in garnishment, where all the parties are non-residents of the state of Kansas, and are residents of the state of Missouri, and the thing attempted to be attached by the garnishment proceedings is a debt created and payable in the state of Missouri, but the garnishee does business in Kansas, and is liable to be garnished in this state, and the other parties come temporarily into Kansas, and, while in Kansas, the plaintiff, who is a creditor of the defendant, who is a creditor of the garnishee, commences an action in Kansas against the defendant, and serves a garnishment summons upon the garnishee, and the debt of the garnishee to the defendant is, by the laws of the state of Missouri, exempt from garnishment process, and such debt also seems to come within the exemption provisions contained in section 490 of the Civil Code of Kansas, and section 157 of the Justices' Code of Kansas, exempting certain earnings of the debtor from the enforced payment of his debts, held, that such debt is exempt from garnishment process in Kansas. Error from Bourbon county. David Kelso and J. H. Sallee, for plaintiffs in error. VALENTINE, J. This was an action brought in the district court of Bourbon county, Kansas, by W. J. Maltby and A. N. Maltby, partners as Maltby & Co., against the Missouri Pacific Railway Company and George W. Ridgway, to recover $116.40 from the railway company because of its failure to answer as garnishee in an action brought by Maltby & Co. against Ridgway, before a justice of the peace of said county. Ridgway and his family and Maltby & Co. were all residents. of Sedalia, Missouri, and the railway company was a Missouri corporation, but had been consolidated, under the laws of Kansas, with two Kansas railway companies, and did business and operated railroads in Kansas. The action brought before the justice of the peace was for groceries sold and delivered by Maltby & Co. to Ridgway, at Sedalia, Missouri. The garnishee summons was served on the agent of the railway company in Bourbon county, Kansas, on July 10, 1883, and the original summons was served personally on Ridgway in the same county on July 17, 1883. The defendant Ridgway appeared personally before the justice of the peace and also by counsel, and judgment was rendered against him and in favor of Maltby & Co. for $258.68. The railway company did not appear within proper time, but afterwards appeared and filed a paper with the justice of the peace, claiming that it was not liable as garnishee; that the court had no jurisdiction over it; and that the sum due from it to Ridgway, to-wit, $58.20, was exempt from judicial process. The justice, however, refused to act upon the paper. At the time of the service of the garnishment summons upon the railway company it owed Ridgway just $58.20. Afterwards Maltby & Co. commenced this present action against the railway company, also making Ridgway a defendant, claiming from the railway company $116.40, be |