Calvin McCutcheon v. Roy H. Leonard
| Decision Date | 07 October 1941 |
| Citation | 22 A.2d 186,112 Vt. 172 |
| Parties | CALVIN McCUTCHEON v. ROY H. LEONARD |
| Court | Vermont Supreme Court |
May Term, 1941.
Attachment.---1. Attaching Officer Not Estopped From Showing Owner.---2. Redelivery on Discharge of Attachment.---3. Judgment on Pleadings.
1. An officer is not estopped from claiming that property does not belong to the party from whose possession it was taken upon attachment.
2. The law does not require that an officer who has attached property in his possession redeliver it upon dissolution of the attachment to the person from whom it was taken if that person is not the owner or entitled to the possession thereof.
3. If the matters in a defendant's answer, if true, are a defense, it is not within the discretionary power of the court below to enter judgment for the plaintiff upon the pleadings.
ACTION ON STATUTE (P. L. 3400) against Sheriff of Rutland County for failure of Deputy to return attached automobile. Special plea in bar. Plaintiff's motion for judgment on pleadings granted September Term, 1940, Rutland County Court, Cushing J., presiding. The opinion states the case.
Judgment reversed and cause remanded.
Edward G. McClallen, Jr., and George M. Goddard for defendant.
Lawrence & O'Brien for plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
In this action the plaintiff, Calvin McCutcheon seeks to recover damages alleged to have resulted to him because of the wrongful refusal by the defendant's deputy to return to his possession a certain automobile truck. The case comes here before entry of final judgment under the provisions of P. L. 2072 upon exceptions by the defendant to the action of the court in granting the plaintiff's motion for judgment upon the pleadings as they stood after the defendant's answer had been filed.
The material facts of the declaration which are admitted by the answer are as follows.
At all times material here the defendant, Roy H. Leonard, was the duly elected and qualified sheriff of Rutland County and one M. J. Dusckett was a duly appointed and qualified deputy sheriff of that county having received his commission as such from the defendant.
On the 26th day of July, 1939, Dusckett by authority of his appointment as such deputy attached a certain Dodge express truck automobile as the property of the plaintiff, this truck found in his possession and being of the value of, to wit, six hundred dollars. This attachment was made by authority of a writ returnable before the Rutland City Court in the suit of Howard J. Burke and Harold F. Burke doing business at the City of Rutland under the name Burke's Garage and Service Station, plaintiff, and Calvin McCutcheon, the plaintiff in the case at bar, defendant. The attachment was made by officer Dusckett taking the automobile into his actual possession. Judgment was entered for the defendant in that suit by the Rutland Municipal Court on February 19, 1940. No appeal was taken to the action of the court in entering that judgment and the same was a final judgment whereby the attachment in that suit was dissolved.
While the foregoing facts are admitted by the defendant in his answer, he denies the plaintiff's allegation that after the judgment had made final disposition of that case it was officer Dusckett's duty to return the automobile truck to McCutcheon's possession because he states that the truck was the property of Thomas F. Burke, Howard J. Burke and Harold F. Burke and at the time of the attachment was in McCutcheon's possession for the purpose of affording him an opportunity of trying it out and so to determine whether or not he wished to purchase it and at the time of the attachment it had not been purchased by him. The answer also states that sometime after the attachment the officer delivered the truck to said Burkes, the owners.
The plaintiff in his motion for a judgment in his favor contends that assuming the facts set forth in the defendant's answer to be true he is entitled to recover in this action. In his declaration he does not allege any right of possession of the automobile excepting the fact that...
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