First Nat. Bank of Hastings v. Rogers

• Decision Date: 01 January 1868
• Citation: 13 Minn. 376
• Parties: FIRST NATIONAL BANK OF HASTINGS v. WILLIAM K. ROGERS and others.
• Court: Minnesota Supreme Court

Page 376

13 Minn. 376

FIRST NATIONAL BANK OF HASTINGS

v. WILLIAM K. ROGERS and others.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Dakota county, refusing to strike out the answers.

Smith & Van Slyck, for appellant.

Smith & Gilman, T. R. Huddleston, and Clagett & Crosby, for respondents.

McMILLAN, J.

This is an action brought upon a bond given by the defendants upon an appeal to the supreme court by the defendant Rogers from a judgment in a former action by the plaintiff against him. The complaint sets up the recovery of a judgment against the defendant Rogers on the fifth of February, 1867, for $5,380.50; that an execution was issued upon the judgment on the twenty-fourth day of April, 1867; that on the thirteenth day of June, 1867, the defendant Rogers gave notice of appeal from said judgment, and that the defendants in this action on that day, in the manner provided by statute, and for the purpose of staying the execution upon such judgment until the final determination of the appeal, executed the bond set forth in the complaint; that upon the appeal the supreme court affirmed the judgment; that a mandate was duly issued, and the same was delivered to the district court on the twenty-third of January, 1868, and on the twenty-eighth of February, 1868, an alias execution was issued out of the district court upon the judgment against the defendant Rogers, and was returned nulla bona; that the defendants have not paid the judgment and interest, or any part thereof, according to the condition of the said bond, etc. The defendant Rogers answers separately, and avers that upon the first execution issued upon the judgment the sheriff levied upon and took into his possession, as the property of the said defendant, 781 barrels of choice Minnesota flour, of the value of $13 per barrel, amounting in the aggregate to the value of $10,153; that the levy is still in force and undisposed of, and was and is sufficient to satisfy said judgment; and avers that the judgment is satisfied.

The defendants Le Duc and Robinson answer together, and set up, among other things, the levy by the sheriff upon the first execution, in the following language: "That under and by virtue of said writ of execution, * * * the said sheriff, on the fourth of May, A. D. 1867, levied upon a large amount of personal property, to-wit, 781 barrels of choice Minnesota flour, the property of said judgment debtor William K. Rogers, and of the value of $13 per barrel, amounting in the aggregate to the sum of $10,153, which said property was sufficient to satisfy the said judgment alleged in said complaint," and that said levy upon said property is still in force and undisposed of. These defendants also allege the return of the writ by the sheriff, and the levy indorsed thereon, which is set out in hæc verba.

The plaintiff moved to strike out the answer of the defendants as sham and irrelevant, and for judgment. The motion was denied, and the plaintiff appeals.

In pleading a levy it is not necessary to state the specific acts of the sheriff constituting a levy in law; it is sufficient to allege generally that by virtue of the execution the sheriff "levied" upon the property. Rohrer v. Turrell, 4 Minn. 410, (Gil. 309.) We think the fact of the levy, that it was upon sufficient property to satisfy the judgment, and that it is undisposed of, is sufficiently pleaded. There is some difference in the authorities as to the effect of a levy on personal property on the judgment, whether it is absolutely a satisfaction or not, but the weight of authority goes to the extent of holding that a levy upon sufficient personal property is at least a satisfaction sub modo of the judgment. In the language of Judge Cowen: "It may operate as a satisfaction,...