Dodge v. Chandler

• Decision Date: 01 January 1864
• Citation: 9 Minn. 87
• Parties: JOHN DODGE vs. MARTIN S. CHANDLER.
• Court: Minnesota Supreme Court

Page 87

9 Minn. 87

JOHN DODGEvs.

MARTIN S. CHANDLER.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

Points and authorities for appellant: —

1. The evidence is not sufficient to justify the verdict in this case, and that said verdict is against the evidence.

2. Error in law occurring at the time of the trial.

3. Because the answer does not aver that the judgment upon which the execution was issued was, at the time said execution was issued, docketed in the county, to the sheriff of which said execution was directed, but on the contrary

states that said execution was issued before such transcript was so docketed or filed, the execution was for that reason irregular and void. Comp. Stat. 568, ch. 61, § 87; id. 567, § 82.

Points and authorities for respondent: —

1. There is nothing in this case to show that the transcript of judgment put in evidence was not docketed in Goodhue County before the execution was signed by the attorney for the plaintiff, or placed in the hands of the sheriff for service, and before any levy was made, and before the same was issued within the meaning of the statute. An execution must be subscribed by the party issuing it or his attorney, and cannot be considered as issued till he places it in the hands of the officer for service. But a transcript can be docketed nunc pro tunc, and an execution can be amended at any time, and does not need to be dated or subscribed by the clerk. The judgment record should be actually filed before execution issues, but it may be ordered to be filed nunc pro tunc. 3 Cow. 39; 22 Wend. 566; 1 Code R. 123; 1 Caines Cas. 9; id. 496; 3 Johns. 448; id. 525; 3 Caines Cas. 104; 4 Minn. [318].

2. The statute requires that any person having a claim to any property levied on by a sheriff upon execution must give notice in writing of his claim to such property to such officer seizing the same, before he can have any right of action against the sheriff. Sess. Laws of 1862, p. 98, § 2; 8 Minn. [75]; 6 Cal. 43; id. 512; 12 Cal. 73; 7 Mass. 123; 8 Pick. 443; 1 Parsons Cont. 441.

W. K. Gaston, and Brisbin & Warner, for appellant.

Morris Lamprey, for respondent.

FLANDRAU, J.

The paper-books in this case are so defectively prepared that it is very difficult to spell out the exact state of pleadings and evidence on the trial. The parties have made up a case, and quite a number of amendments have been proposed and adopted. These amendments refer to the original case, in some instances by blank references to the folios and lines. The case as amended has never been engrossed, and we are left to trace it out as best we may. The proper practice would be to send it back for engrossment before considering it, but the fault must rest with the attorneys if any misunderstanding of facts results from the state of the papers.

The points upon which the appellant seeks to reverse the judgment below are not very numerous, and we will consider them in the order in which they are presented in his brief. The first is insufficiency of the evidence to sustain the verdict, etc. There is an issue of fraud made upon the purchase of the plaintiff from Mr. Spencer, the original owner of the goods. Upon this issue evidence was given of the fact, that the plaintiff was the clerk of Spencer; that he paid for the property in his note; that he sold portions of it back again to Spencer, and the articles so sold were indorsed on the plaintiff's note as part payment; also the telegram from Spencer to Downing to ship the goods to St. Paul after the sale to the plaintiff, which may not have been properly admissible, as having been an act of Spencer without the knowledge of the plaintiff, but which was not offered until after the witness had testified without objection to the fact of his having telegraphed for the goods, and the whole contents of the telegram. The jury being in possession of the fact, the mere introduction of the telegram would not be error of sufficient importance to vitiate the verdict. This evidence as to the invalidity or fraudulent character of the transfer from Spencer to the plaintiff was, in our opinion, sufficient to justify a verdict for the defendant if there was nothing else in the case.

The next point is on the charge of the judge to the jury as to the notice required by ch. 41, Sess. Laws of 1862, p. 98. In the case of Vose v. Stickney, 8 Minn. [75], we held that where personal property was found in the possession of the judgment debtor, who was exercising acts of ownership over it with the consent of the owner, and was seized by the sheriff upon execution, persons claiming the same could not maintain an action against the sheriff unless they notified him of their claims, or showed that he had such notice before the seizure. This case was before the statute of 1862, and was decided upon what we conceived to be law upon principle and authority. This statute seems to have the same object in view, and is therefore declaratory only. The meaning of section 2 of said act is, that whenever the officer makes the seizure of property in the actual personal possession or custody of the defendant, under process against him, third parties claiming the same must, before they can maintain an action against the officer, give such officer notice in writing of their claims to such property, unless the officer possessed at the time of the levy knowledge of the plaintiff's claim, and seized the...