Dudley v. Green

• Decision Date: 17 March 1896
• Citation: 46 S.C. 199,24 S.E. 186
• Parties: DUDLEY et al. v. GREEN, Sheriff.
• Court: South Carolina Supreme Court

24 S.E. 186

46 S.C. 199

DUDLEY et al.

v.GREEN, Sheriff.

Supreme Court of South Carolina.

March 17, 1896.

Claim and Delivery—Illegal Seizure by Sheriff.

One from whom personal property was wrongfully taken by a sheriff, who refuses to sur render it on demand, has a right of action against such sheriff for claim and delivery, and, in the event such delivery cannot be made, to a judgment for the value of such property.

Appeal from common pleas circuit court of Marlboro county; Ernest Gary, Judge.

Action by Thomas E. Dudley and Lemuel E. Caston, partners under the firm name of Dudley & Caston, as trustees, against John 15. Green, as sheriff. From a judgment of nonsuit, plaintiffs appeal. Reversed.

The following are the grounds of appeal: "(1) Because his honor, the presiding judge, erred, it is respectfully submitted, in holding that it was incumbent on plaintiffs to prove possession of the mortgaged property by defendant at the date of the commencement of the action. (2) Because his honor erred in not holding that proof of written notice and demand upon defendant for the mortgaged property before sale dispensed with the necessity of proving possession by him at the time action was instituted. (3) Because his honor erred in holding that there was not sufficient evidence of possession to put defendant to his proof. (4) Because his honor erred in considering this action as one merely for the recovery of personal property, when it is respectfully submitted it was an action for damages. (5) Because his honor erred in holding that plaintiffs failed to prove possession of the property by defendant, when it is respectfully submitted it was proved, and also admitted in his answer. (6) Because his honor erred in not holding there was sufficient evidence on the part of plaintiffs to allow the case to go to the jury."

Dudley & Caston, for appellants.

F. W. Bouchier and H. H. Newton, for respondent.

POPE, J. It seems that the firm of J. & G. A. McAlister, being indebted to several persons living beyond the limits of this state, whose claims were in the hands of the law firm of Dudley & Caston for collection, made a mortgage of all their stock in trade, as merchants, on the 24th day of November, 1894, to said Dudley & Caston, as trustees, in which mortgage the debt was fixed at $245, and was made to mature December 24, 1894, and this mortgage was recorded in the office of the register of mesne conveyances for Marlboro on the day of its execution. There was an inventory of the stock in trade attached to the mortgage. On the 21st day of December, 1894, the defendant John B. Green, as sheriff, under certain executions issued out of the court of common pleas for Marlboro county, to him directed, seized and took into his possession all of the stock in trade of said firm of J. & G. A. McAlister; but, on the 26th day of December, 1894, two days after the maturity of the mortgage, Dudley & Caston, as trustees, demanded such property of the sheriff under their mortgage, forbade its sale by the sheriff, and gave him notice that he would be held liable for damages if he persisted in possession and shouldmake a sale of said stock of goods. On the first Monday (sale day) of January, 1895, the defendant, as sheriff, sold said stock in trade at the aggregated price of $135.16, and has since continued to hold said money. On the 13th day of February, 1895, the plaintiffs, as trustees, brought this action...