Carlton v. Saville, 6561.
| Citation | 56 S.D. 550,229 N.W. 2 |
| Decision Date | 28 January 1930 |
| Docket Number | No. 6561.,6561. |
| Parties | CARLTON v. SAVILLE, Sheriff (GULLICK, Intervener). |
| Court | Supreme Court of South Dakota |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Aurora County; R. C. Bakewell, Judge.
Action by Lewis D. Carlton against G. A. Saville, Sheriff of Aurora County, in which Ben Gullick, trustee of the estate of Theophilus J. Carlton, bankrupt, intervened. From the judgment, and from an order denying new trial, plaintiff appeals. Affirmed.
See, also, 51 S. D. 282, 213 N. W. 509;224 N. W. 957.R. P. Carlton, of Rapid City, for appellant.
R. B. Palmer, of Woonsocket, for respondent Saville.
Johnson & Simons, of Sioux Falls, for respondent Gullick.
One T. J. Carlton was arrested on a criminal charge, and put up cash bail in the sum of $2,000. Subsequently, and on March 19, 1926, the said T. J. Carlton was acquitted of the offense charged. Immediately upon said acquittal the defendant sheriff levied upon and took possession of said bail money by virtue of an execution issued upon a judgment in favor of Woonsocket State Bank and against the said T. J. Carlton, defendant in the criminal proceeding as aforesaid. Upon learning that said bail money had been levied upon at the suit of his judgment creditor, the said T. J. Carlton filed a voluntary petition in bankruptcy, and was duly adjudicated a bankrupt, and the plaintiff in intervention was duly appointed as trustee in bankruptcy for the estate of the said T. J. Carlton, bankrupt. Subsequently Lewis D. Carlton, plaintiff herein, a son of the said T. J. Carlton, instituted this action against the defendant sheriff to recover said bail money which the defendant sheriff held under the levy aforesaid, claiming that title to said sum was and always had been in him the said Lewis D. Carlton, and that he was the owner and entitled to the possession thereof, although he had put up the money as a cash appearance bond for his father, the said T. J. Carlton. In said action the trustee in bankruptcy of the estate of said T. J. Carlton intervened, claiming that the fund was, and at all times had been, the property of the said T. J. Carlton; that the levy thereon by the defendant sheriff was made within four months prior to the adjudication of bankruptcy and was preferential, and that he (the intervener) was entitled to possession of said fund as part of the estate in bankruptcy of the said T. J. Carlton.
The case came on regularly for trial upon these opposing contentions of the respective parties before the court and a jury.
At the close of all the testimony, defendant sheriff moved for direction of a verdict dismissing plaintiff's cause of action against him, which motion was granted, and the intervener trustee in bankruptcy moved for the direction of a verdict in his favor on his complaint in intervention, which motion was also granted.
From judgment entered accordingly, and from a...
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