Ferguson v. Day

• Decision Date: 31 January 1893
• Citation: 6 Ind.App. 138,33 N.E. 213
• Parties: FERGUSON et al. v. DAY, Sheriff, et al.
• Court: Indiana Appellate Court

6 Ind.App. 138

33 N.E. 213

FERGUSON et al.

v.DAY, Sheriff, et al.

Appellate Court of Indiana.

Jan. 31, 1893.

Appeal from circuit court, Lawrence county; J. R. East, Judge pro tem.

Replevin by Francis M. Ferguson and others against Robert Day and others. Judgment for defendants. Plaintiffs appeal. Reversed.

Dunn & Dunn, for appellants. Giles, Zaring & Hottel, for appellees.

DAVIS, J.

This was an action in replevin, instituted by appellants, Francis M. Ferguson, Mary Ferguson, and Emma Ferguson, as partners doing business under the firm name of Oliver Ferguson & Son, against the appellee Robert Day, as sheriff of Lawrence county, to recover the possession of a large amount of personal property, consisting of horses, mules, harness, wagons, carts, scrapers, plows, and other articles belonging to appellants, and used by them, as such partners, in the operation of their business as railroad contractors, then engaged in constructing a railroad. Judgment was rendered in favor of appellee in the court below. An appeal was taken by appellants to the supreme court, and the case was by that court, on its own motion, transferred to this court for determination. No question is presented for our consideration on the pleadings. The errors assigned by each of appellants severally and also by them jointly, are: (1) The court erred in its conclusions of law upon the facts found; (2) the court erred in overruling appellants' motion in arrest of judgment.

No motion for a new trial was filed, and the evidence is not in the record. On account of the large amount of property in controversy, and of the importance of the questions involved, we set out the substance of the special finding of facts in full:

“First. I find that on the 29th day of May, 1890, the firm of Oliver Ferguson & Son was the owner and in possession of the property described in the complaint, and set out in Schedule A, and was of the reasonable value of $6,000. That on the said 29th day of May, 1890, the said firm of Oliver Ferguson & Son was constituted and made up of the following members: Marion Ferguson, Mary Ferguson, and Emma Ferguson; and the said firm, on the said day, owned partnership property in St. Louis, Mo., Anderson, Ind., and in Lawrence county, Ind., in the sum of $17,000. About $6,500 of said property was situate in Lawrence county, Ind., and $8,000 worth of said property in Madison county, and the remainder in the state of Missouri. That on the 3d day of May, 1890, Hull & Boswell recovered a judgment in the Lawrence circuit court against one William Ferguson and Marion Ferguson for $2,500 and costs,-the latter being at the bringing of this suit, and since November, 1888, a member of the firm of Oliver Ferguson & Son,-on an individual indebtedness of said William and Marion Ferguson, and not on an indebtedness of Oliver Ferguson & Son. That on said 29th day of May, 1890, an execution had been issued by the clerk of the Lawrence circuit court, and placed in the hands of the defendant, who was then the sheriff of said Lawrence county, Ind., and that on said day the defendant, as such sheriff, and by virtue of such execution, levied upon all the property set out in the plaintiffs' complaint, and then took them in his possession, and retained the possession thereof until June 7, 1890, when the plaintiffs took possession of said goods upon giving bond as required by law, and have since had the possession of such goods. * * * That at the time said goods were levied upon, and at the time they were taken and retained, by the defendant, they were situate and continued in the county of Lawrence and state of Indiana, during the time they were in possession of the defendant. That at the time of the taking possession of said goods by said defendant the plaintiffs were the owners of a steamboat situate in said Lawrence county, Ind., of the value of $250, a lot of cement and piling of the value of $400, and a horse power of the value of $100, which were not levied on by the defendant, or taken into his possession, by virtue of said execution, at the time, nor since, by him. And that at the time of said levy, on the 29th day of May, 1890, said defendant, as such sheriff, had no knowledge of the existence of said property. I further find that the plaintiffs sustained a loss by the detention of said property in the sum of $100. That, at and prior to the time of the levy by said defendant on said goods, he made diligent search for all the partnership property of Oliver Ferguson & Son in Lawrence county, Ind., and the execution defendant Marion Ferguson was the owner of one third interest in said partnership property. I further find that prior to the time of the bringing of this suit the plaintiffs demanded possession of the property mentioned and described in the complaint, which was refused by the defendant. John R. East, Judge pro tem.”

“As a conclusion of law upon the fore going facts, I find for the defendant John R. East, Judge pro tem.”

The judgment was that defendant should have return of the property, “or, upon failure, that he recover of the plaintiffs the sum of six thousand ($6,000) dollars,” etc.

The sheriff's return, copied into the finding, (and which we have omitted,) can be considered only as a statement of evidence, and has no proper place in the finding of facts in this case. The facts recited and the statements contained in the sheriff's return should be treated as surplusage, and disregarded, in determining whether the conclusion of the law on the facts as found is correct. Bartholomew v. Pierson, 112 Ind. 430, 14 N. E. Rep. 249.

On the facts as found by the court, as hereinbefore set out, regardless of the statements contained in the sheriff's return, there are vital questions presented for our consideration which have been discussed by counsel for the respective parties. It is well settled that in order to entitle appellants to recover in this action, they must do so on the strength of their own title, and it must appear that they have the right to the immediate possession of the property in controversy. One partner cannot maintain an action of replevin against his copartner. Branch v. Wiseman, 51 Ind. 1;Noble v. Epperly, 6 Ind. 414;Hartlep v. Cole, 101 Ind. 458;Railway Co. v. Payne, 103 Ind. 183, 2 N. E. Rep. 582; Darter v. Brown, 48 Ind. 395. The authorities cited supra also support the proposition that an execution defendant can maintain an action against a sheriff to recover personal property seized under an execution against him only in case he shows the property is exempt from execution. Miller v. Hudson, 114 Ind. 550, 17 N. E. Rep. 122. It is also a well-established principle that the action of replevin may now be maintained in all cases where the action of trespass would lie prior to the adoption of the Code, for taking away personal property. Rowell v. Klein, 44 Ind. 290;Rose v. Cash, 58 Ind. 278;Hadley v. Hadley, 82 Ind. 95;Schenck v. Long, 67 Ind. 579;Moorman v. Quick, 20 Ind. 67. It cannot be doubted that the interest of one partner in the goods or property of the firm may be levied and sold upon execution for his individual debt. As incidental to the right of sale, the officer may, without interfering with the rights of the other partners, take possession of the entire interest seized, and on sale deliver it to the purchaser, who takes subject to the rights of the other partners. The power of the sheriff to take possession of the corpus of the entire partnership property is merely incidental to the right to reach the interest of the debtor. The sheriff, under some circumstances, at least, may, for his own security, and in order to protect his levy, temporarily, pending the sale, take possession of the entire property of the partnership, and, after the sale of the debtor's interest so levied upon, redeliver the whole of the property in which he has sold the interest of the execution defendant to the other partners and the purchaser. Williams v. Lewis, 115 Ind. 45, 17 N. E. Rep. 262; Atkins v. Saxton, 77 N. Y. 195;Nixon v. Nash, 12 Ohio St. 647, 80 Amer. Dec. 390, and authorities cited in note; Moore v. Pennell, 52 Me. 162, 83 Amer. Dec. 500, and authorities cited in note; Branch v. Wiseman, 51 Ind. 1. The sheriff cannot, in such case, on execution against one partner only, seize and levy upon specific articles of partnership property. The levy and sale must be of the interest of the debtor in the partnership property. This follows of necessity, because the partners have no separate title in any aliquot part of the partnership property. Williams v. Lewis, supra; Whigham's Appeal, 63 Pa. St. 194; Moore v. Pennell, supra; Gilham v. Kerone, 45 Mo. 487;Donellan v. Hardy, 57 Ind. 393. The sheriff must act in obedience to the law, or he becomes a trespasser ab initio. It is not enough to show a judgment and execution in justification, for it must also be shown that he proceeded in the manner provided by law. Rutherford v. Davis, 95 Ind. 245;Jarratt v. Gwathmey, 5 Blackf. 238. The principle is established by the authorities that where a partnership is composed of three members, and the sheriff, on an execution against one of them, levies on the specific articles of personal property of the partnership as the property of the individual debtor, and seizes and takes into his possession all the goods and chattels of the partnership so levied upon, for sale as the sole and separate property of the individual debtor, in violation and disregard of the interests of the partnership and of the rights of the other members of the firm, he becomes a trespasser ab initio, and the three partners composing the firm may jointly maintain an action against him for trespass, or in replevin. Moore v. Pennell, supra; Williams v. Lewis, supra; Fay v. Duggan, 135 Mass. 242; Atkins v. Saxton, supra; Whigham's Appeal, supra. In Atkins v. Saxton, supra, the court, after stating the proposition that the power of the sheriff in seizing and...