State ex rel. Reeves v. Barker

• Decision Date: 23 May 1887
• Citation: 26 Mo.App. 487
• Parties: STATE EX REL. JOHN REEVES, Respondent, v. THOMAS J. BARKER, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 487

STATE EX REL. JOHN REEVES, Respondent, v. THOMAS J. BARKER, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Harrison Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.

Affirmed.

CRITTENDEN MCDOUGAL & STILES, with SKINNER & WINSLOW, for the appellants.

I. By his conduct in disclaiming the ownership of the goods at the time of the levy, the sheriff was induced to proceed and the relator was estopped from claiming them afterwards. Garnhart v. Finney, 40 Mo. 449 462-3, and cases cited; Dezell v. Odell, 3 Hill (N Y.) 215, 218, 219; Bigelow on Estoppel [3 Ed.] 481, 482, and cases cited, notes.

II. The court below erred in refusing competent testimony to prove that the relator had no interest in the goods at the time of the levy. That was the precise question in issue. Burgert v. Borchert, 59 Mo. 80, 86, 87.

III. As these defendants were not parties to the original attachment suit, nor to the interplea filed by relator, they were not bound by the judgment rendered in either. Stewart v. Thomas, 45 Mo. 42, 44, and cases cited; State ex rel. Aiken v. Mills, 27 Wis. 403.

IV. The sheriff (Barker) was out of office, and had turned the writ and the goods over to his successor before the sale of the goods and prior to the filing of relator's interplea. These defendants had no notice of the interplea, and the court erred in holding that the judgment thereon was conclusive against them. George v. Middough, 62 Mo. 549, 551; Stewart v. Thomas, 45 Mo. 42, 44.

V. As they were neither parties nor privies to that proceeding, they could not be either estopped or concluded by the judgment thereon. Henry v. Woods, 77 Mo. 277; McDonald v. Matney, 87 Mo. 358.

KARNES & KRAUTHOFF, with WILSON & SALLEE, for the respondent.

I. Although the relator interpleaded for the attached property and accepted its proceeds under the judgment of the court awarding them to him, this did not bar an action on the sheriff's bond to recover the balance of the value of the goods. Clark v. Bratt, 71 Mo. 473; Drake on Attachments [5 Ed.] sect. 196; State ex rel. Mastin v. McBride, 81 Mo. 349; Trieber v. Blocher, 10 Md. 14. All the instructions asked by the defendant were based upon a contrary theory, and were, therefore, properly refused.

II. This narrows the case to the consideration whether error was committed in the admission and exclusion of evidence by the court. None of the objections offered by the plaintiff need be considered, the grounds thereof not being stated. Indeed, the appellants urge only one point, and that is the exclusion of the evidence offered by them, to the effect that when the deputy sheriff levied on the property, the plaintiff stated that he did not own the goods, and that the plaintiff did not acquire the title to the attached property until after the levy had been made. The record states that the court excluded this, on the ground that the finding and judgment upon the relator's interplea in the attachment suit was binding upon these defendants. The correctness of this ruling is the matter which the appellants make the subject of their brief. It will be observed that the evidence offered did not go to show that the plaintiff had no right to maintain this suit, and much less, that the defendant, Barker, as sheriff, was innocent of the trespass charged against him. The attachment writ in his hands was directed against the property of Hulen, and, of course, did not authorize a levy upon the property of any one else. Such a levy was a trespass, and the defendant made the same at his peril. State v. Fitzpatrick, 64 Mo. 85; State ex rel. O'Brien v. Koontz, 83 Mo. 323; State ex rel. Robertson v. Hope, 88 Mo. 430.

III. The plaintiff was entitled to recover, in the absence of a showing, that the defendant had process in his hands authorizing him to seize the property in question. No such showing was made, or offered to be made, and the plaintiff was entitled to recover, whether he owned the property at the time it was levied upon, or subsequently acquired title to the same, or even if he became the assignee of the right of action which accrued from the sheriff's wrongful seizure. Snyder v. Railroad, 86 Mo. 613; Buck v. Colbath, 3 Wall. 334, 344.

IV. The statements and admissions of the relator alleged to have been made at the time of the levy of the writ of attachment, were insufficient to constitute an estoppel. There was no offer to prove the essential fact that the officer acted on the statements, or was caused to change his condition or intended action by reason of them. Monks v. Belden, 80 Mo. 639, 642, and cases cited; Robinson v. Hawkins, 38 Vt. 693, 696; Wallace v. Truesdale, 6 Pick. 455.

V. An interplea in an attachment suit is neither summary, for a regular trial is had upon the issues made by it, nor in personam, because it draws in question the title and status of the property which is before the court and in the custody of the law. It is evidently for this reason that our supreme court rules that a verdict on an interplea in an attachment suit must be for the attached property, and not a money verdict for its value. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 632, 637.

PHILIPS P. J.

This is an action against the sheriff of Harrison county, Thomas J. Barker, and the sureties on his official bond, to recover damages for the alleged wrongful levy of a writ of attachment on the property of plaintiff.

In the attachment suit the plaintiff interpleaded, and on the trial of the issues therein, the plaintiff prevailed. After this the plaintiff brought this action to recover the damages consequent upon the wrongful taking and detention of his property. At the trial the defendant sought to prove that the plaintiff was not the owner of the property, in fact. This evidence was excluded, on the ground that the defendant was concluded by the recovery of the plaintiff in said action of interplea.

Plaintiff had judgment, to reverse which this appeal is prosecuted. The only question, therefore, for our determination is as to the correctness of the ruling of the circuit court.

I am of opinion that the judgment on the interpleader in the attachment suit is, in this action, conclusive, as to the plaintiff's ownership of the property in question. The proceeding of interpleader, in the action of attachment, is somewhat sui generis. It is solely the creature of the statute. It is defined by our supreme court (in Burgert v. Borchert, 59 Mo. 80), to be in the nature of an action of replevin, ingrafted on a suit by attachment. Its very office and purpose are to determine the question of ownership of the specific chattel, and the right of the sheriff to seize and hold it under his writ. It is so much a substitution for the action of replevin, that, after its judicial determination, the interpleader cannot resort to the action of replevin for the same property. Being thus a substitution for the action of replevin, it must stand, in contemplation of law, as if it were lodged directly against the sheriff by name.

The sheriff represents the plaintiff in the attachment suit in holding the property as the legal custodian. Whitter v. Fisher, 27 Iowa 12.

The interpleader " became substituted for the original defendant, and, therefore, a party to the action." Whitter v. Fisher, 27 Iowa 12. Of consequence, the officer who stands as if the action of replevin were against him must be bound by the adjudication. It is no answer to this to say that the sheriff is not, eo nomine, a party to the record, without the power to call witnesses and take an appeal. General rules must cease to operate where the reason on which they stand no longer exists. They must yield to substance, and the spirit of the law. A person, not a party to the record, for whose real benefit an action is prosecuted, or who hires counsel, and testifies in the case, and directs the course of trial, or otherwise concerns himself in the matter, may be as much bound by the result of the suit as if he were named as a party, although he may not be in a situation to take an appeal. Landis v. Hamilton, 77 Mo. 555; Conger v. Chilcote, 42 Iowa 18.

Take the case of a judgment in favor of the interpleader. The judgment is, that the property is his, and that he recover possession of the same. The sheriff is not a party, by name, to the record. Suppose he should, when called on by the interpleader for the goods, after judgment, refuse to surrender them, or not have them on hand, or the proceeds, would it be any defence to an action against him and his bondsmen to say that he was not bound by that judgment? Upon what principle rests the binding force of that judgment in such case, on the sheriff, different from the one here presented? It must rest upon the principle that the sheriff is the ministerial officer of the court, and that the property held by him is in custodia legis. It is constructively in the court. The sheriff is an officer, and a part of the court. The property is the res, the very thing on which the judgment operates; more peculiarly so in the action of replevin, for, as held by this court in Spooner v. Ross, (24 Mo.App. 599), the judgment in favor of the interpleader operates alone upon the property or its proceeds in the hands of the sheriff. It is for this reason that the supreme court holds that the verdict on an interplea must be for the attached property, and not a money verdict for its value. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 637.

As is said, in effect, in Lenoir's Adm'r v. Wilson (36 Ala.), the statute gives the owner of property, seized under the writ of execution against another, the privilege by interplea, of arresting the proceedings against his property, until there shall be a judicial...