Opinion
File No. 7740.
Opinion filed March 6, 1935.
Sheriffs and Constables.
Sheriff cannot be amerced for failure to make return on execution placed in his hands for levy, where there is no property belonging to judgment debtor in sheriff's county subject to levy (Rev. Code 1919, § 2650).
Appeal from Circuit Court, Minnehaha County; HON. RAY E. DOUGHERTY, Judge.
Proceeding by the Sioux Falls Corrugating Company against Fred Gurius and another. From the judgment, plaintiff appeals.
Affirmed.
A.J. Keith, of Sioux Falls, for Appellant.
Frank Wickhem, of Sioux Falls, and Louis Navin, of Mitchell, for Respondents.
This is a proceeding to amerce a sheriff under the provisions of section 2650, R.C. 1919. The court upon a sufficient showing concluded as follows: "That the said sheriff cannot be amerced for failure to make return on an execution placed in his hands for levy where there is no property belonging to the judgment debtor in the said sheriff's county subject to levy." This conclusion is correct unless this court at this time wishes to depart from the rule announced in the case of Swenson v. Christoferson, 10 S.D. 188, 72 N.W. 459, 66 Am. St. Rep. 712. We appreciate that the rule announced in the above-cited case is not the rule followed by all jurisdictions. See Lee v. Dolan, 34 N.D. 449, 158 N.W. 1007. However, the rule has been established in this state since 1897 and does have some support in the authorities, and we are not inclined to depart therefrom.
The order appealed from is affirmed.
All the Judges concur.