Adler v. Lang

• Decision Date: 17 May 1887
• Parties: SOLOMON ADLER ET AL., Respondents, v. CHRISTOPHER LANG ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 226

SOLOMON ADLER ET AL., Respondents, v. CHRISTOPHER LANG ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

MARTIN LAUGHLIN & KERN, for the appellants.

NATHAN FRANK, for the respondents.

OPINION

ROMBAUER J.

This is an appeal from an order of the circuit court, made upon the sheriff of the city, commanding him to pay the sum of twelve hundred and fourteen dollars, on demand, to the plaintiffs.

The only point made by the appellants is, that the transcript of the record before us does not warrant the order.

The record, by its title, appears to be a record in a cause wherein Solomon Adler and Jacob Frank were the plaintiffs and Christopher Lang the defendant, and begins with a recital that, on a certain day, a certain motion was filed therein requiring the sheriff to pay over to them the sum of twelve hundred and seventy-six dollars, realized by the sheriff from the sale of attached property. The motion then, in detail, sets out the title of the plaintiffs to said fund.

The order made by the court, upon this motion, is not in the record. It appears, however, that the sheriff did, afterwards, appear and make a written return thereto, wherein he set out in detail the manner in which the fund came into his hands, and the disposition he made thereof, and that, prior to the service of the order of the court upon him, he had paid out all of the funds to the attachment debtor, partly prior to, and partly after, the final dissolution of the attachment.

The sheriff's return was denied by general reply.

Upon the hearing of the motion, the sheriff gave evidence substantiating the facts stated in his return, and the plaintiffs gave no evidence, whatever, showing any title to the fund. They, evidently, proceeded on the theory that the facts stated in their motion were not controverted by the sheriff's return, and, therefore, admitted. This is a misconception of the entire proceeding. The sheriff does not plead to the motion, but to the order. The sheriff's return is an admission of the facts stated in the return itself, and no more. Whether the sheriff's return, as a matter of law, showed such disposition of the funds made by him as he was legally authorized to make, is one question and whether the plaintiffs have shown themselves entitled to the fund is another, and...