Derick v. Cole

• Decision Date: 13 April 1895
• Citation: Derick v. Cole, 30 S.W. 760, 60 Ark. 394 (Ark. 1895)
• Parties: DERICK v. COLE
• Court: Arkansas Supreme Court

30 S.W. 760

60 Ark. 394

DERICK v. COLE

Supreme Court of Arkansas

April 13, 1895

Appeal from Lee Circuit Court, GRANT GREEN, JR., Judge.

STATEMENT BY THE COURT.

This is an appeal from a judgment in an action of trespass. The facts necessary to an understanding of the issues in the case are that, on the 7th of December, 1892, an order of general attachment was regularly issued from the office of the clerk of the court of common pleas of Lee county, directed to the sheriff of Lee county, and was delivered to the appellee, as constable, at 11 o'clock p.m. of said day, said constable having been designated by the attorney of the plaintiff in the writ to serve the same; that the appellee, as such constable, immediately after the receipt by him of said writ on said day, levied the same upon certain personal property which he took into his possession, and locked up in a house. He continued in possession of the said property till the 10th day of the same month, when the same was taken from him by said appellant, as sheriff of Lee county, claiming the right to levy upon and take possession thereof by virtue of certain writs of attachment issued from the circuit court and from the court of common pleas of said county on the 7th day of December, 1892, and which came to his hands for execution at 4 and at 4:05 o'clock p.m. on said day. The complaint in the ease alleged the value of the property in controversy to be $ 75, which was not controverted in the answer.

The defendants asked the following declaration of law by the court, which the court refused, and defendants excepted viz.: "The court declares the law to be that an order of general attachment binds the property of the defendant in the county which might be seized under execution against him, and is a lien upon the same from the time of the delivery of the order to the sheriff, or other officer, and such lien is not displaced or divested by the levy thereon of another order of attachment against the same defendant in the hands of another officer, which subsequently came to the hands of such officer." The court thereupon found for plaintiff in the amount sued for ($ 75) as the alleged value of the property taken, and rendered judgment against defendants accordingly.

Defendants filed and presented a motion for new trial, assigning grounds as follows, viz.: (1) That the finding and verdict of the court are contrary to law; (2) that the finding and verdict of the court are not sustained by sufficient evidence; (3) that the court erred in refusing to declare the law to be as asked by defendants. The court overruled the motion for new trial, to which defendants excepted, and prayed an appeal and presented their bill of exceptions, which was signed by the judge, and filed in proper time.

Judgment reversed and cause remanded.

McCulloch & McCulloch for appellant.

1. Under sec. 341, Sand. & H. Dig. an atttachment binds the defendant's property from the time of delivery of the order to the sheriff or other officer. That is, it is a lien which is not displaced by actual levy under a subsequent writ. 54 Ark. 179; 56 id. 292; 49 id. 302; 39 id 97; 133 Ill 332.

2. There was no proof as to the value of the goods.

E. D Robertson and Jas. P. Brown for appellee.

1. The writ first issued binds defendant's property so that he can make no valid sale of it, but a levy must be made to complete the lien. Sand. & H. Dig. sec. 341; 11 B. Mon. 23.

2. Property in custody of the law is not subject to execution. Freeman, Ex. sec. 135; Murfree on Sheriffs, secs. 541-2. The first levy holds the property.

3. The value of the property was agreed to be $ 75.

OPINION

HUGHES, J., (after stating the facts).

The first question in this ease is, can a sheriff, by virtue of a writ of attachment which came to his hands before another writ of attachment in the hands of a constable came to the hands of the constable, levy upon and take from the possession of the constable, without his consent property seized and taken possession of by the constable, under the writ received by him as such constable, after the time when the writ held by the sheriff came to the sheriff's hands? To this question we answer, "No;" for, when a writ of attachment comes to the hands of an officer authorized to serve it, it is his duty to execute it without delay; and when he has done so by seizing and taking into his possession property liable to be taken in execution for the defendant's debts, his possession is the possession of the court upon whose order the writ issued, and the property seized is in custodia legis, and no valid levy can be made upon it that will authorize a second seizure of it; and if the officer take possession of property already levied upon and in the possession of another officer, holding under a junior attachment first levied, by force, he is liable in trespass to the officer making the first levy. An officer, by a seizure of goods under mesne process or execution, acquires a special property...