Bradley v. Holloway

• Citation: 28 Mo. 150
• Parties: BRADLEY, Appellant, v. HOLLOWAY, Respondent.
• Decision Date: 31 March 1859
• Court: United States State Supreme Court of Missouri

28 Mo. 150

BRADLEY, Appellant,

v.HOLLOWAY, Respondent.

Supreme Court of Missouri.

March Term, 1859.

1. Where, in St. Louis county, a levy of an execution or attachment is made upon personal property, a person other than the defendant in such execution or attachment, claiming the property so levied on, has a choice of remedies. He may make claim to the property in accordance with the third section of the local act of March 3, 1855, (Sess. Acts, 1855, p. 464); in which case, if the sheriff or other officer demands and receives a sufficient indemnification bond from the plaintiff in the execution or attachment, the claimant will have no remedy against the officer but must resort to a suit on the indemnification bond. Should the claimant, however, not make claim in the manner provided in said section, he may maintain an action against the sheriff or other officer for the possession of the property levied on.

2. A sheriff or other officer levying an execution or attachment is not authorized, under said act of March 3, 1855, to demand an indemnification bond of the plaintiff in the execution or attachment unless claim is made to the property levied on substantially as provided in the third section of said act.

Appeal from St. Louis Law Commissioner's Court.

Dedman, for appellant.

I. The act of March 3, 1855, is merely cumulative in its provisions and not obligatory. Parties claiming personal property seized under execution or attachment are not obliged to enforce their claims under it.

Bay, for respondent.

I. Bradley omitted to set forth his claim in writing as required by the third section of the act of March 3, 1855.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiff brought an action of replevin against the defendant for a wagon and yoke of oxen. The cause was tried without a jury; and it appears, from the facts found by the court, that the defendant, as constable of Merrimac township, levied on the property in dispute whilst in the plaintiff's possession, by virtue of an execution issued by a justice of the peace of that township against Benjamin Haley. The court further found that the property did not at any time belong to Haley, but that it belonged to the plaintiff, which he demanded of the defendant before the commencement of the suit, though not in the manner indicated by the third section of the act entitled “An act concerning the duties of sheriff and marshal in the county of St. Louis in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons,” approved March 8, 1855. (Sess. Acts, 1855, p. 464.) On these facts judgment was rendered for the defendant, and the plaintiff was ordered to return the property or pay one hundred dollars, the assessed value thereof, at the election of the defendant.

The only question in the case arises on the construction of the local act referred to. The obvious purpose of the act was to relieve to some extent the ministerial officers named in it from the embarrassing duty of ascertaining at their peril, in all cases, whether property levied on by them belongs to the defendant in the writ or not. By the common law, the sheriff is bound, when he receives an execution, to make reasonable inquiry to ascertain if the defendant has any property in his county subject to levy, and if he finds the defendant in the possession of any, whether it is claimed by a third person or not, he will be liable to the plaintiff in an action for a false return if he fails to levy, and the burden of proof will fall on him to show that such property was not in fact subject to the execution. If, on the other hand, he makes a levy, and the goods do not belong to the defendant, he is liable to the owner in an action of trespass. Though the owner may assert his title in the most solemn form, and exhibit the proof of it to the officer, the latter can not require indemnity from the plaintiff, who may fold his arms and say to the sheriff, do your duty at your peril; and in this dilemma, liable on one hand to an action for a false return, and on the other to an action of trespass, the sheriff must judge for himself both the law and the facts.

The statute under consideration relieves the office of sheriff of some of its responsibility, and provides that when personal property is seized by virtue of an execution or attachment, which is claimed by any person other than the defendant in such execution or attachment, and the claimant shall set forth his claim in its particulars, verified by affidavit as prescribed by the third section, the officer may release his levy and refuse to execute the writ, unless the plaintiff gives a bond of indemnity with sufficient security conditioned as directed by the second section. The sheriff has no right to surrender property levied on, or to require a bond from the plaintiff, on the mere claim of a stranger; but when the particulars of the claim are stated and sworn to, the officer may say to the plaintiff that a claim has been made to the property by a third person in a manner that entitles it to respect, and that he will refuse to execute the writ unless a bond is given as provided by law. As the plaintiff is not required to give a bond unless a claim is made substantially in a certain manner, neither is the owner compelled to prefer his claim in the mode indicated by the third section; but if he does, by that act alone he makes his election to give up any right of action against the sheriff, and to seek his remedy on the bond. If a bond is not given after a claim is properly made, the officer may release his levy; but if a...