Deyampert v. Johnson

• Citation: 15 S.W. 363,54 Ark. 165
• Parties: DEYAMPERT v. JOHNSON
• Decision Date: 31 January 1891
• Court: Arkansas Supreme Court

15 S.W. 363

54 Ark. 165

DEYAMPERT v. JOHNSON

Supreme Court of Arkansas

January 31, 1891

APPEAL from Chicot Circuit Court, CARROLL D. WOOD, Judge.

DeYampert sued Barringer to enforce his landlord's lien on certain cotton, and procured a writ of specific attachment to be issued and placed in the hands of the sheriff, the defendant Johnson. The sheriff seized the property, but subsequently released it to a claimant without requiring any bond. DeYampert procured judgment for his debt and sustaining his lien. An execution being returned unsatisfied, he brought this suit upon Johnson's official bond, alleging that he had released the property without authority. Against the objection of plaintiff, defendants introduced evidence tending to show that, on the day the attachment was sued out and before the writ came into the hands of the sheriff, the cotton was sold to one who had no notice of plaintiff's lien. The court sitting as a jury dismissed the complaint at plaintiff's cost.

Plaintiff appealed.

Judgment reversed.

C. H Carlton and W. S. McCain for appellant.

The attachment was special, not general, and it was the sheriff's duty to seize and hold the particular property mentioned. 3 Wall., 334; 102 U.S. 689. The writ was a protection to him. It was for the court, not for the sheriff to determine the rights of strangers claiming the property.

Admitting by his return that he had found the cotton and levied on it he is estopped from pleading that he released it without the consent of plaintiff or an order of court, Drake on Att secs. 188-9.

James F. Robinson and John G. B. Simms for appellees.

Sec. 4461 Mansf. Dig. precludes by necessary implication the right of a sheriff to levy on cotton when found in the hands of a purchaser without notice. 31 Ark. 131; 34 id., 691. See Drake on Att., sec. 197.

The only effect of a release was to cast the burden on him to show that the title had passed to an innocent purchaser without notice. Drake, Att., sec. 195; Freeman on Ex., sec. 275.

OPINION

BATTLE J.

When a valid order to attach specific property is delivered to the proper sheriff, it is his duty to seize the property described in the order and hold the same subject to the order of the court, or until the attachment is dissolved, or he is required by the statute to deliver the same to another person upon his executing a bond. He can use no discretion or judgment, and has no right to determine to whom the property that he is ordered to seize belongs. If he surrenders it upon a claim of right to the same, without authority of the court or parties concerned, or taking a bond as required by the statutes, he becomes responsible to the party aggrieved in a civil action for damages.

In actions like this the measure of damages is the actual injury sustained, the actual injury being so much of the debt as was lost by the misconduct of the sheriff. The breach of duty being clear, the burden of showing that he is not responsible for actual damages is upon the defendant. He can do so by proving that the cotton seized was not subject to a lien for rent because it had been sold and was in the possession of a...