Davidson v. Waldron

• Citation: 83 Am.Dec. 206,31 Ill. 120,1863 WL 3081
• Parties: JAMES W. DAVIDSONv.ZACHARIAH K. WALDRON et al.
• Decision Date: 30 April 1863
• Court: Illinois Supreme Court

31 Ill. 120

1863 WL 3081 (Ill.)

83 Am.Dec. 206

JAMES W. DAVIDSON

v.ZACHARIAH K. WALDRON et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Bureau county; the Hon. MADISON E. HOLLISTER, Judge, presiding.

This was an action of trover, brought by James W. Davidson against Francis B. Cooley, Elisha S. Wadsworth, John V. Farwell, Zachariah K. Waldron, Marshall Field, and Charles W. Wilcox, to recover for certain lumber, boards, scantling, planks and lath, of the value of $1,200, of which the plaintiff alleged he was lawfully possessed on a day prior to the commencement of the suit, and which, on that day, he casually lost out of his possession, and that they came into the possession of the defendants, by finding, the defendants knowing the same to be the plaintiff's property, but contriving and intending to injure the plaintiff, refused to deliver the same to him, although often requested so to do, but converted and disposed of the same to their own use, to the plaintiff's damage of $1,200.

The defendants pleaded, first, not guilty; and second, a special plea, setting up that George C. Wilder recovered two certain judgments in the Circuit Court of Cook county, for certain specified amounts, against one John C. Gibson; and that the defendants, Cooley, Wadsworth and Farwell, had also recovered a certain judgment against said Gibson, in the Cook County Court of Common Pleas; that executions having been issued upon said judgments, and coming to the hands of said defendant Waldron, as sheriff of Bureau county, were by him levied upon the lumber, boards, plank, scantling and lath mentioned in the plaintiff's declaration, as the property of the said John C. Gibson; that by virtue of the said levies, and the liens acquired by means thereof, the said sheriff advertised and sold the property mentioned, to satisfy said judgments; that at the time of making said levies, the said John C. Gibson was in possession of, and engaged in selling and disposing of said lumber, boards, etc., in his customary and usual manner, at Arlington, in said Bureau county, and had been in possession of, and so engaged, for a long time prior to said levies; that the lumber, etc., was liable to be so levied on and sold under said writs to satisfy said judgments, to which the proceeds were properly applied; that said Cooley, Wadsworth and Farwell, and said defendants, Field and Wilcox, as their agents, directed said sheriff to so levy on and take said lumber, etc, under said writs, which were the same trespasses complained of in the declaration. That after the levies were made, said Field and Wilcox acted under the direction of said sheriff, and as his clerks in the sale of the property.

The replication to the special plea denied the recovery of the judgments mentioned therein, and averred that at the times when, etc., in the plea mentioned, said Gibson was not in possession of said property, and that the same was not liable to be levied on and sold as stated in the plea.

The issues were tried before the court, by agreement, without the intervention of a jury.

The plaintiff, Davidson, based his claim to a right of recovery in the action, upon a special property and right of possession in the lumber, which he claimed to have acquired by virtue of a levy previously made thereon by him as United States marshal, through his deputy, Matthews, under a writ of fieri facias, which was issued out of the Circuit Court of the United States for the Northern District of Illinois, upon a judgment rendered therein in favor of David B. Jewett against the said Gibson.

The principal question presented by the record, touching the right of the plaintiff below to recover, arises out of the alleged invalidity, as insisted upon by the defendants, of the levy claimed to have been made upon the property by the marshal, Davidson. The evidence having reference to the character of that levy, is sufficiently set out in the opinion of the Court.

Another question arises in the case, as to the power of the State court to inquire into, and decide upon the validity of a levy of an execution which was issued out of a Circuit Court of the United States.

The finding and judgment in the court below, were in favor of the defendants; upon which the plaintiff, Davidson, prosecuted this writ of error.

Messrs. E. S. SMITH, and E. A. STORRS, for the plaintiff in error.

First. The property levied upon by the plaintiff in error, as United States marshal, was in the custody of the law, and was not liable to be taken by another execution in the hands of a different officer, acting under another jurisdiction. And herein--

1. The property was in the custody of the law. Taylor v. Caryl, 20 How. U. S. 595; Ludden v. Leavitt, 9 Mass. 104; Brashear v. West, 7 Peters, 608.

2. The property thus levied upon by the plaintiff in error, was not liable to be taken on another execution in the hands of a different officer, acting under another jurisdiction. Hagan v. Lucas, 10 Peters, 400; Peck v. Jenness, 7 How. U. S. 612; Taylor v. Caryl, 20 How. U. S. 583; Freeman v. Howe, 24 How. U. S. 455--459; Brown v. Clarke, 4 How. U. S. 4; The Oliver Jordan, 2 Curtis, 415; Ex parte Robinson, 6 McLean, 356; Pulian v. Osborn, 17 How. U. S. 474; United States v. Booth, 21 How. 507.

3. The general rule is settled, beyond all controversy, that State courts cannot enjoin nor interfere with proceedings in the United States courts; nor the latter in the former courts. Act of Congress, March 2, 1793, ch. 22, sec. 5; Story's Eq. Jurisp., vol. 2, p. 241, sec. 900; Story on the Const., secs. 1757--1759; Kent's Commentaries, vol. 1, page 412; Diggs v. Walcott, 4 Cranch, 179; Kittridge v. Emerson, 13 New Hamp. 227; McKim v. Voorhies, 7 Cranch, 279; Cruik shanks v. Robarts, 6 Madd. 104; Mead v. Merritt, 2 Paige, 404, 405; Bicknell v. Field, 8 Paige, 440; United States v. French, 1 Gall. 1; Phelan v. Smith, 8 Cal. 520; City Bank of N. Y. v. Skelton, 2 Blatch. C. C. 14; Ex parte Cabrera, 1 Wash. C. C. 232; Dudley's Case, 1 Penn. Law. Jour. 302; Osborn v. Bank of U. S., 9 Wheat. 738.

4. The word “proceedings” as used in the above rule, includes the sale of a sheriff under an execution, as also the levy made by him upon property by virtue of the execution. Wayman v. Southard, 10 Wheat. 1; Duncan v. Dart, 1 How. 304; Beers v. Haughton, 9 Pet. 329; United States v. Knight, 14 Pet. 329; Amis v. Smith, 16 Pet. 312.

5. This rule is founded not only upon comity, but upon public necessity. Freeman v. How, 24 How. 455-459; Mead v. Merritt, 2 Paige, 404; Peck v. Jennes, 7 How. 625.

6. The fact that the plaintiff in error, in this case, sought to enforce the rights secured by his levy in the State court, cannot affect the application of this rule. Having made the first levy, the State courts cannot inquire into its regularity or validity, but must remit those questions to the tribunal from which the process issued, and could, with no greater propriety, defeat an attempt to assert such right on the ground that the execution was dormant, than it could enjoin the marshal from proceeding to sell under such an execution for the same reason.

Second. The execution held by the marshal, and by virtue of which he levied upon the property of Gibson, was not, by reason of the delay in selling the property thus levied upon, dormant as to these defendants, nor as to any other creditors of Gibson. And herein--

1. The question as to whether an execution is, or is not, dormant, is one of intent; and it must appear that the plaintiffs in the execution, intended by it to hinder, delay, or defraud other creditors, and that it was levied to cover the goods merely, or create a lien separate from the possession. Seanty v. Worthington, 4 Rawle, 155; Matthews v. Warne, 6 Halst. 310; Bac. Abr., Fraud “A”; Bradley v. Windham, 1 Wills, 44. 2. And hence it is that this fraudulent intent must be established by some act of the plaintiffs in the execution. A delay in making sale is merely evidence of an intent to cover the property, when such delay proceeds from the directions of, or is caused by, the plaintiffs' interference with the officer in the execution of the writ. Herkimer County Bank v. Brown, 6 Hill, 232; Russell v. Gibbs, 5 Cowen, 390; Butler v. Maynard, 11 Wend. 552; Rew v. Barber, 3 Cowen, 279; Benjamin v. Smith, 12 Wend. 404; Brown's Appeal, 26 Penn. State, 402; Doe v. Ingersoll, 11 Smedes & M. 250; Houston v. Sutton, 3 Harring. 37; Hickman v. Hickman, 4 Harring. 484; Cumberland Bank v. Hanx, 4 Harr. (N. J.) 168; Power v. Van Buren, 7 Cow. 560; Paton v. Westervelt, 13 N. Y. Leg. Obs. 7; Ethridge v. Edwards, 1 Swan, 426; Cox v. McDougal, 2 Yeates, 434.

3. In this case the delay in making sale proceeded from no act or directions of the plaintiffs in the execution. The delay, therefore, not proceeding from any act of the plaintiffs, nor with their knowledge, no presumption could be indulged in against them.

4. All presumptions of fraudulent intent or purpose upon the part of the plaintiffs in the execution, are met and overthrown by the facts in the case. At least $14,000 worth of personal property was left exposed to any other process, and which was not levied upon by the plaintiff in error. There could have been no intent to cover the property of the debtor, for but a small portion of it was levied upon.

5. The lumber levied upon was left in the custody of a third person, appointed by the marshal. The acts of the custodian in permitting the defendant in the execution to interfere with the property, could neither affect the rights of the marshal, nor the plaintiffs in the execution. He would simply make himself liable to them in damages.

Mr. C. M. HAWLEY, for the defendants in error.

In trover, the plaintiff's right to recover depends upon the strength of his own title, and not upon the weakness of his adversary. In this action, property in another is a good plea. Duncan v. Spear, 11 Wend. 54.

To sustain...