Douglas v. Orr

• Decision Date: 31 January 1875
• Citation: 58 Mo. 573
• Parties: S. C. DOUGLAS, Appellant, v. J. C. ORR, Respondent.
• Court: Missouri Supreme Court

58 Mo. 573

S. C. DOUGLAS, Appellant,

v.J. C. ORR, Respondent.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Boone Circuit Court.

O. Guitar, for Appellant.

I. To constitute a valid levy there must have been an actual taking of the possession and control of the vehicles. (Wagn. Stat., § 19, 606; Yeldell vs. Stemmons, 15 Mo., 443; Newman vs. Hook, 37 Mo., 207; Cobb vs. Gage, 7 Ala., 619.)

Henry Flanagan with Squire Turner, for Respondent.

I. The levy was valid. (Woods vs. Vanarsdale, 3 Rawle, 401; Butler vs. Maynard, 11 Wend., 548; 23 Wend., 490; 5 Denio, 198; 12 B. Mon., 484.)

II. Although in the amended transcript the bill of exceptions states that “an appeal was granted,” yet, inasmuch as the order granting an appeal is part of the record proper, and no part of a bill of exceptions, and the record fails to show such order, the appeal should be dissmissed. (State vs. Griggs, 48 Mo., 557; Ray vs. Ray, 49 Mo., 301.)

HOUGH, Judge, delivered the opinion of the court.

It appears from the record in this cause, that on the 14th day of December, 1871, the defendant, Orr, being at the time sheriff of Boone county, and having in his hands a valid execution, from the Boone Circuit Court against one R. W. Dorsey, went to the carriage shop of said Dorsey in the town of Columbia, to get a new buggy he had purchased of him; and while one W. G. Alexander, who was the only person about the premises (Dorsey being at the time absent from town), was outside the shop, fixing the shafts on the sheriff's buggy, he went into the store room of the carriage shop, which contained a number of vehicles of various kinds, and while no one was present rolled one buggy a few feet in order to place it near another buggy in the room, and without moving any of the property from the room, or placing any mark of any kind on any of the vehicles, or putting any one in possession thereof to hold for him, and without having any possession or control over the house in which he found and left the vehicles, and without informing any person about the shop at the time, that he was making or had made a levy, he went to the court house where he met the attorney for the plaintiff in the execution, and informed him that he had made a levy, and then and there indorsed on the execution a levy on two one-horse buggies, one one-horse buggy or phaeton, one spring wagon, and two sets of harness; and left the same day for Jefferson City.

On the 18th day of December, 1871, Dorsey executed, according to law, and delivered to the plaintiff Douglas, as trustee, a deed of assignment for the benefit of all his creditors, and on the same day put him in possession of all the personal property described in said deed, including the property mentioned in the return of the sheriff, which was still in the show room of the carriage shop. Plaintiff also took possession of the room in which it was stored. It is not pretended that either Dorsey or Douglas knew anything whatever of the alleged levy, prior to or at the time of the assignment. Sometime after the alleged levy, defendant having heard of the deed of assignment, went to plaintiff and demanded the property in question, and plaintiff refusing to give it up, the defendant afterwards, about the 15th or 18th of February, 1872, without the authority or consent of plaintiff, took the phaeton, top buggy and rockaway, which he claimed to have levied upon, from the room in which plaintiff kept them; and in March, 1872, sold the same for a sum sufficient to satisfy the execution against Dorsey, and thirty dollars more. Douglas then brought the present action against Orr to recover the value of the vehicles so taken and sold.

The testimony showed them to have been worth in the aggregate the sum of $700. The cause was tried by the court. The law was correctly declared, but the court found that plaintiff was only entitled to the sum of $30, the surplus remaining after satisfying the execution against Dorsey, and gave judgment accordingly, and plaintiff brings the case here by appeal.

We are not called upon in this case to pass upon the weight of evidence; that, it has been decided again and again, this court will not do. The question is whether there is any testimony tending to show a levy by the defendant. The facts relied upon as constituting a levy, are really undisputed; but even though some of them may be thought to be disputed, the question is, do they, if taken as true, constitute a levy? A denial by one witness of facts stated by another, upon which a verdict is based, does not...