Atoka Milling Co. v. Groomer

• Decision Date: 29 May 1928
• Docket Number: Case Number: 18141
• Parties: ATOKA MILLING CO. v. GROOMER.
• Court: Oklahoma Supreme Court

1928 OK 347

268 P. 208

131 Okla. 58

ATOKA MILLING CO. v. GROOMER.

Case Number: 18141

Supreme Court of Oklahoma

Decided: May 29, 1928

Syllabus

¶0 1. Attachment--Invalidity Where Property Seized on Sunday Outside County and Forcibly Brought into County.

Where personal property of defendant is seized under attachment on Sunday by a deputy sheriff outside his county and outside the county in which the suit is brought, and by him forcibly and against the will of defendant carried into said county, such seizure and removal is unlawful and constitutes a trespass, and it was not error for the court upon proper motion and proof showing these facts to vacate and discharge such seizure.

2. Same--Invalidity of Second Attachment Immediately After Discharge of First.

Where, under the facts set out in paragraph 1, and immediately upon the release of said property to defendant, plaintiff caused said property to be seized again upon an alias order of attachment, and where defendant appeared specially and moved to discharge such attachment upon the ground that the first attachment was void for the reasons set out in paragraph 1 hereof, and that his property was unlawfully brought into the county of the second attachment against the will of defendant, and that he was in said county as witness and party solely for the purpose of having his property discharged from such attachment, and where the foregoing are found by the court to be the facts, the discharge of such property from seizure is proper.

Commissioners' Opinion, Division No. 2.

Error from District Court, Atoka County; P. L. Gassaway, Judge.

Proceeding by Atoka Milling Company for attachment of C. H. Groomer's personal property to satisfy plaintiff's claim. From an order discharging property from attachment, plaintiff appeals. Affirmed.

J. G. Ralls, for plaintiff in error.

I. L. Cook, for defendant in error.

BENNETT, C.

¶1 Atoka Milling Company sued C. H. Groomer in district court of Atoka county for a money judgment in August, 1926. The return of summons shows service on the wife of defendant. In October, following, plaintiff filed an affidavit for attachment, alleging, among other things, that defendant was a nonresident, and under this affidavit an alias order or writ of attachment was issued October 18, 1926, to sheriff of Atoka county. Under and by virtue of the writ, said sheriff, through his deputy, went over into Bryan county near Durant, Okla., and levied upon, as the property of defendant, a motor truck loaded with household goods. This levy was made on Sunday, October 24th, and immediately following levy, the sheriff forcibly and against the will of defendant carried the attached property along with defendant back to Atoka county to the town of Caney, where defendant had formerly lived.

¶2 Defendant filed a motion in the cause to quash and discharge the levy, supporting same by affidavit and other proof to the effect that said levy was without authority of law, and that the property was attached and defendant served with writ and notice of attachment by sheriff of Atoka county, while defendant and his goods were in Bryan county, and that such attachment and process was served and levied on Sunday, October 24, 1926. After hearing upon the motion, both parties being present by their attorneys, the court made an order quashing and setting aside the levy, and discharging the property and goods of defendant from attachment for the reason that said levy was without legal authority.

¶3 Immediately following the discharge of attachment, the property was turned over to defendant, who resumed his journey to his home in Hamlin, Tex., and on the same day, and immediately after discharge of the property, plaintiff sued out an alias order or writ of attachment, and caused the sheriff of Atoka county to serve same and attach the defendant's property a second time. This attachment was made in Atoka county, and before defendant had an opportunity to remove his property from said county, but while he was on the way out of the county. On October 28, 1926, defendant made a special appearance, and filed a motion to quash as unlawful the issuance and service of the second attachment, alleging, among other things in his supporting affidavit, that on October 26, 1926, defendant was attending court in Atoka county as a material witness and as a suitor in the case of Atoka Milling Co. v. C. H. Groomer, and further that it was his intention to return to his home in Texas after attendance upon said court; that immediately after his business at court was over he started on his return home, but was overtaken by deputy sheriff of Atoka county, and served with said order of attachment, and also that said goods had been formerly attached at instance of plaintiff by sheriff of Atoka county while said goods and defendant were in Bryan county, Okla., on Sunday, October 24, 1926, and that said goods and defendant were unlawfully and by force brought by said sheriff from Bryan county into Atoka county on Sunday, October 24th; said motion prayed that the attachment be dissolved, and the goods of defendant discharged.

¶4 Upon hearing of the motion, all parties being present, the records, motions, pleadings, process, and return were introduced in evidence, and it was then agreed by and between the parties in open court that the writ of attachment sought to be quashed was issued and seizure of property thereunder sought to be discharged was made after the court had theretofore discharged said property from seizure under a former writ of attachment made on Sunday in Bryan county by sheriff of Atoka county, and it was further agreed that after such discharge, and on the same day, plaintiff caused an alias writ of attachment to issue under which the same property was again seized after the property had been delivered to defendant and while he was on his way home. It was agreed also that the sole question to be determined was whether or not the seizure was void under the circumstances, and the court, after hearing argument of counsel and the examination of pleadings, etc., made the following findings:

"The court finds that said automobile truck and household goods had been formerly seized under a prior writ of attachment issued on the 18th day of October, 1926, and that the seizure was made on Sunday in Bryan county, Okla, by the sheriff at Atoka county. Okla. * * *' And the court, on the 26th of October, 1926, discharged said automobile truck loaded with household goods from seizure because the same had been seized on Sunday.

"The court further finds that when said * * * goods were seized under the prior attachment on Sunday, the same was taken forcibly and unlawfully from Bryan county, Okla., to Atoka county, Okla.; * * * that the said C. H. Groomer at the time of the seizure was a resident of the state of Texas, but the household goods had never been moved from the state of Oklahoma. * * *

"The court further finds that the defendant, C. H. Groomer, was, on October 26, 1926, in good faith attending the district court of Atoka county, Okla., as a suitor and a material witness in his motion to quash and set aside the writ of attachment and discharge the property seized thereunder, and that he and his said goods had been unlawfully brought here under void service of process. * * * And * * * C. H. Groomer * * * had no other business at Atoka, except to be present as a party and to testify in his own behalf. * * *

"And the court further finds that the possession of said property had been unlawfully obtained. * * * That the seizure * * * was illegal, and that the said defendant, C. H. Groomer, had a reasonable time to remove said property from Atoka county after the same had been discharged by the court, and that he had not been given a reasonable time to remove the same, and that therefore the seizure was in violation of the law of attachment where possession of property had been unlawfully obtained for the purpose of levying thereon, and of the privilege and exemption from service while attending court in good faith.

"The court further concludes * * * that the reseizure under an alias attachment herein was void."

¶5 The goods were ordered returned to the defendant. To which conclusions of law and judgment and order, plaintiff except, and appeals to this court for review.

¶6 This record presents but a single question: Was the attachment levied upon defendant's goods in Atoka county a void attachment? It will be observed: First. That section 1827, C. O. S. 1921, prohibits the service of legal process of any description upon the first day of the week, except in cases of breach or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law. Second. There is no statute authorizing the sheriff of Atoka county to attach in a civil suit property of defendant located outside of the county of such sheriff. Section 343, C. O. S. 1921. For these reasons we conclude that plaintiff and the sheriff, in making the first seizure, were trespassers, and, while acting under color of authority, were entirely without warrant of law. Third. When such plaintiff, and at his instance, the Atoka sheriff, forcibly and without right brought defendant's property and defendant against his will out of Bryan county and into Atoka county, neither defendant nor his property was rightfully there for the purposes of process on behalf of plaintiff.

¶7 The general doctrine laid down in 6 C. J., par. 473, page 245, is:

"Where Levy Effected Through Unlawful Detention. Although it is indisputable that, where possession of property has been unlawfully obtained for the purpose of levying thereupon, such levy is wrongful and cannot be upheld against anyone who is so situated that he can urge its invalidity, yet such objection is not available to a party whose right also springs solely from a seizure effected through the unlawful detention."

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