Corner v. Mackintosh

• Citation: 48 Md. 374
• Parties: THOMAS CORNER, B. MEZICK CORNER and GEORGE W. CORNER v. WILLIAM MACKINTOSH.
• Decision Date: 26 March 1878
• Court: Court of Appeals of Maryland

48 Md. 374

THOMAS CORNER, B. MEZICK CORNER and GEORGE W. CORNER v. WILLIAM MACKINTOSH.

Court of Appeals of Maryland

March 26, 1878

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

Exception.--The plaintiff offered three prayers as follows:

1. That the petition of the defendants in the attachment case in Baltimore County, the proceedings in which, have been given in evidence, is conclusive evidence against the defendants that they knew that the sheriff had seized the goods in question, and that they ratified the seizure.

2. That the plaintiff is entitled to recover the value of the goods seized at the time and place of seizure, with interest thereon until the payment to him of the sum in bank, as mentioned in the proceedings in the attachment case in Baltimore County, which have been given in evidence, and then interest on the balance from that day until this day.

3. That reasonable counsel fees are to be allowed as to the attachment case, the proceedings in which have been given in evidence, as well for the trial in Baltimore County, as for the proceedings in the Court of Appeals.

The defendants offered the following prayers:

1. If before the sheriff had done any thing under the writ of attachment which has been offered in evidence in this cause the defendants' counsel ordered and directed him not to take possession of any of the property mentioned in the schedule accompanying his return to said writ, and not to disturb the plaintiff's possession, or that of any agent of his if found in possession thereof, and neither the defendants nor their counsel ever gave the sheriff any other order or direction, then under the pleadings in this cause the plaintiff is not entitled to recover.

2. If the defendants' counsel directed the sheriff in executing the writ of attachment, which has been offered in evidence in this case, not to take possession of any of the property mentioned in the schedule accompanying his return to said writ, and not to disturb the possession of the plaintiff or of any agent of his, if found in possession thereof, and the sheriff obeyed said directions, then the plaintiff is not under the pleadings in this cause, entitled to recover.

3. If the sheriff did not, under the writ of attachment, which has been offered in evidence in this cause, take possession of any of the property mentioned in the schedule accompanying his return to said writ, and did not disturb the possession of the plaintiff, or of any agent of his found in possession thereof, then the plaintiff is not, under the pleadings in this cause, entitled to recover, although the sheriff made return to said writ, that he had attached said property as per schedule, and although after the institution of this suit, he sold said property in pursuance of the order of the Circuit Court for Baltimore County, which has been given in evidence.

4. If the Court shall find that when the sheriff was proceeding to execute the writ of attachment, which has been given in evidence, a certain H. Horner was, as servant of the plaintiff, in possession of the property mentioned in the schedule accompanying the sheriff's return to said writ, and that the said sheriff laid said attachment in the hands of said Horner, and that the plaintiff, before any removal or sale of said property, had notice of said attachment, and of the sheriff's action thereunder; and shall further find that the plaintiff made no request or demand to be allowed to have or retain possession of said property as garnishee, under said writ, and that the said Horner made no such demand or request; and shall further find that the said sheriff, at the time of laying said attachment, did not remove said property, but left the same where he found it, on the farm of the plaintiff, which was occupied by the said Horner as agent of the plaintiff, and that the sheriff did not interfere with said goods and chattels, further than to make provision for the safe-keeping thereof, and the feeding of the live stock, which was part thereof, and that said provision was rendered necessary by the refusal of the said Horner to care for and feed the same; and shall further find that the Circuit Court for Baltimore County, in and for the interest of all persons who might be interested in said personal property, ordered the same to be sold by the sheriff, and that the plaintiff had knowledge thereof, or made no objection to said sale, and the same was made accordingly, and the sum of $2283.25, being the proceeds thereof, less the cost and expenses of said sale, was paid into said Court, and by its order deposited in bank to the credit of said attachment cause; and shall further find that said sheriff, before the time for the return of said attachment, laid the same also in the hands of the plaintiff, and at the proper time made due return thereof; and shall further find that the plaintiff did not, before the sale of said personal property, ask the said Court to cause the same to be delivered to him, and did not after sale, ask to have the proceeds of said sale paid to him until the 6th day of March, 1871, when he filed his petition for that purpose, which has been given in evidence; and shall further find that on the 11th day of March, 1871, the Court, upon said petition, ordered the said sum of $2283.25, which had been deposited in bank, to be paid to the plaintiff, and that said sum was, in accordance with said order, paid to him on the 13th day of March, 1871, then the plaintiff is not entitled, under the pleadings in this action, to recover as damages in this action, even if the Court shall find for the plaintiff, for any loss of interest upon said proceeds of sale so paid into Court and deposited in bank, while the same was so in bank under the order of said Court.

5. If the Court shall find that the sheriff of Baltimore County was not directed by the defendants or their counsel to exceed or depart from the command in the writ of attachment which has been offered in evidence, then the defendants are not liable, under the pleadings in this action, for any seizure which the Court may find to have been made by said sheriff under color of said writ, although the Court may find that he seized and took possession of goods and chattels of the plaintiff, and may also find that after the institution of this suit, he sold the same in pursuance of the order of the Circuit Court for Baltimore County, which has been given in evidence.

6. That there is no evidence of any wrong committed before the institution of this suit, for which the plaintiff, under the pleadings in this cause, is entitled to recover in this action.

7. Even if the plaintiff be entitled to recover in this suit, he is not, under the pleadings in this cause, entitled to recover any damages for the sale of the property offered in evidence, the said sale having been made on the farm of the plaintiff, after the institution of this suit and in pursuance of the order of the Circuit Court for Baltimore County, as shewn by the evidence offered on behalf of the plaintiff.

8. Even if the plaintiff be entitled to recover in this action, he is only entitled, under the pleadings, to recover for such damages, if any, as may have resulted from the taking and detention of the property mentioned in the evidence.

9. That no evidence has been offered that any damage resulted from the taking and detention of the property offered in evidence, and the plaintiff is, under the pleadings in the cause, entitled to recover, if at all, only nominal damages.

10. The Court is further prayed to grant the above first three prayers and each of them, in view of and in connection with the further fact that the sale made was proved by the plaintiff not to have been made until after the institution of this suit, and to have been made on the farm of the plaintiff.

The Court (DOBBIN, J.,) granted the plaintiff's prayers and the eighth prayer of the defendants, but rejected the defendants' other prayers.

The verdict and judgment being for the plaintiff, the defendants appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ALVEY, J.

Arthur W. Machen and John H. Thomas, for the appellants.

Neither the writ of attachment nor the orders of the appellants' counsel authorized the sheriff to take possession of the property, or disturb the appellee or any agent of his found in possession thereof. Van Brunt vs. Pike, 4 Gill, 271-276.

The sheriff did not, technically or in fact, disturb the possession of either. He testified that, if he had done so, he would have removed the property, or have left it and taken a forthcoming bond for his protection. Horner, the appellee's agent, refused to retain possession of it, because he had no corn to feed the stock. If the sheriff did anything objectionable, it was rendered necessary by the appellee's abandonment of the property, not by any act or order of the appellants.

The Court, by its refusal of the appellants' second, third, fourth and sixth prayers, decides, in opposition to this principle and these facts, that the appellants are liable in this action, which is for "seizing, taking and carrying away the property, and converting it to their own use," although neither they nor the sheriff had done either of the acts complained of. If the sheriff did any of the acts complained of, in opposition to appellants' orders, or even without express direction, they are not liable therefor. The Court therefore erred in refusing the appellants' first and fifth prayers.

The appellants, if liable for anything, could only have been made responsible, when this suit was brought, for the taking and detention of the property, even by a declaration appropriate for that purpose, not for...