Standard Oil Co. v. Bretz

• Decision Date: 13 November 1884
• Docket Number: 11,348
• Citation: 98 Ind. 231
• Parties: The Standard Oil Company v. Bretz et al
• Court: Indiana Supreme Court

98 Ind. 231

The Standard Oil Company v. Bretz et al

No. 11,348

Supreme Court of Indiana

November 13, 1884

From the Dubois Circuit Court.

G. W Cooper, C. B. Cooper and O. A. Trippett, for appellant.

W. A Traylor, W. S. Hunter, E. A. Ely and J. L. Bretz, for appellees.

OPINION

Bicknell C. C.

The appellant brought this suit against the appellees to recover the possession of certain staves and damages for their unlawful detention. The complaint was in the common form. The defendant Bretz was the treasurer of Dubois county, and the defendant Chandler was his deputy. They answered the complaint jointly by a general denial. The issue was tried by a jury in September, 1883, who returned a verdict for the defendants. A motion by the plaintiff for a new trial was overruled, and judgment was rendered upon the verdict. The plaintiff appealed.

The error assigned is overruling the motion for a new trial. The seventh reason for a new trial is not discussed in the appellant's brief. It is therefore regarded as waived. The fourth, fifth and sixth reasons for a new trial are, that the verdict is contrary to the law and the evidence. The action for replevin can not be maintained unless the evidence shows that the defendant at the time of the commencement of the suit was in the actual or constructive possession of the property. Krug v. Herod, 69 Ind. 78; Louthain v. Fitzer, 78 Ind. 449.

Americus J. Hubbard testified: "The Standard Oil Company owned the staves. They were piled upon a lot owned by me. They are still there, stacked on the ground, and were when the suit was brought. I leased the lot to the Standard Oil Company; the staves were in my possession as agent of the plaintiff. They are not bucked; by bucking is meant dressing on each side. The defendants levied upon them, and had them in possession when the suit was brought. What I mean by the defendants taking possession of these staves before the suit was brought is this: The defendant Chandler came there, and said he attached them for taxes; he did not move them, and did not leave any one in possession of them. He told me that I must not take them away, and he afterwards tried to sell them. The staves are there now and have been all the time."

James H. Chandler testified: "I made a levy on the staves in controversy, and took them into my possession. I just levied on them and let them stand as they were. I was collecting taxes for the defendant Bretz, as deputy treasurer."

In answer to questions by the court this witness said: "What I mean by taking possession of the staves is this: I made a memorandum of the levy, and then went off collecting other taxes. I endorsed the levy on the tax-book; that is what I call possession. Hubbard told me that if any of them were stolen I would be responsible for them. I notified him not to move them, and I advertised them for sale under the levy. This suit was brought before the day of sale, and I did not sell."

The defendant Bretz testified: "I am treasurer of Dubois county. I ordered my deputy to levy on these staves; I never saw them until after suit was brought."

It was proved that McGregor & Hubbard's delinquent taxes were $ 155.14, and that the value of the staves was $ 2,000. The return of the levy was as follows:

"August 8th, 1883. I demanded payment of McGregor & Hubbard the amount of taxes and costs, and being refused payment, I then levied upon one hundred thousand, more or less, rough staves.

William H. Bretz, T. D. C.

"By James W. Chandler, Deputy."

The duty of a county treasurer in regard to a levy on chattels is prescribed by section 6429, R. S. 1881, as follows: "When the county treasurer levies upon personal property, the delinquent may retain the possession of such personal property for sixty days, and until the day of sale, by giving" bond, etc. "If such bond be not given he shall cause the property to be removed from the place the same is levied on, and to be stored in some secure place in his own name as treasurer." In regard to levies in general, the rule is that possession must be taken when personal property is levied on.

In Dawson v. Sparks, 77 Ind. 88, this court said: "The constable endorsed on the execution that he had levied on the wagon, but he did not take it into his possession. It may be conceded that this was an invalid levy."

In Freeman on Executions, section 260, we find the following: "In all cases, there must be something more than a mere pen-and-ink levy. It is not sufficient that the officer merely makes an inventory of the property, and endorses the levy upon his writ."

In Wells on Replevin, section 142, it is said: "Where the defendant was an officer who had levied on property, but did not remove it, the defendant in the execution who still retained the goods, will not be permitted to sustain replevin against the officer, as the possession was still in himself but when an officer levies on goods,...