Fisher v. Gordon
| Decision Date | 31 January 1844 |
| Parties | FISHER v. GORDON. |
| Court | Missouri Supreme Court |
ERROR TO ST. LOUIS CIRCUIT COURT.
TODD and KRUM, for Plaintiff.
1. The court erred in refusing to permit the plaintiff to prove that, upon the decision of the constable's jury in favor of Kennerly's claim, he directed the defendant to sell the property, offering at the same time good and sufficient indemnity to defendant therefor, which the defendant refused to do. Watson on the office and duty of Sheriff, 195; 8 Johns. R. 185; 10 ibid. 98; 15 ibid. 147; 8 Cowen's R. 65; 5 Wendell's R. 309; 1 Hall's R. 596; 6 Mo. R. 166. These references directly show, that if a third person claim the property levied upon under an execution, the officer may, for his protection, call a jury to try the validity of the claim. If they decide for the claim, the officer may abandon the levy, unless the plaintiff shall direct him to sell, offering at the same time a sufficient indemnity, in which case the officer is bound to sell or take the hazard of a suit for a false return, without any aid in such suit from such decision, except as evidence to protect him from vindictive damages. The reasons are, that thereby the officer has full protection for his acts, which is all he has any right to or interest in; and also, the plaintiff's right to a satisfaction of his debt out of the property of his judgment debtor is thereby saved from the jeopardy of a trial, the most inadequate imaginable for a correct determination of conflicting rights. But it will be observed that the law, without any statutory provision, did not at all protect the officer for selling, in case the verdict were against the claimant. The claimant had still his action to recover of the officer the worth of the goods sold. There was, perhaps, fair and just occasion for legislation, and accordingly, by the enactment of section sixteen of Revised Statutes of Missouri, p. 367, it was provided, that “if the jury find the goods and chattels to be the property of the defendant in the execution, the verdict shall, as against the claimant, justify the officer in selling such goods and chattels.” If the verdict be for the claimant, the officer is subject to the same law, and the plaintiff has the same rights existing before this enactment, and so considered in the case of Little v. Seymour et al., 6 Mo. R. 166.
2. The court erred in refusing to give the instruction asked for by the plaintiff. The plaintiff proved, without objection, that Greene, at the time of the levy in her boarding-house, had other property in her boarding-house, and no excuse was attempted for omitting to levy upon that. An officer is bound to use active and thorough diligence for finding property to satisfy an execution out of it.
3. The verdict was against law and evidence, because the plaintiff's evidence proves that there was enough other property of Greene's besides that levied upon within the reach of active diligence, and the defendant's proof of the verdict of the jury upon Kennerly's claim was no evidence at all on this trial, to show that the property levied upon was not Greene's, but was evidence only to show that the defendant did not act fraudulently, and to save him from vindictive damages. Same authorities as under first point. The defendant on this trial was bound to prove the property levied upon out of Greene as fully as if said verdict had not been had. 5 Wendell's R. 309; 2 H. Blacks. 437; 3 Maule and Selwyn, 175; Starkie and Phillips on Evidence, under the head of Inquisition.
This was an action against defendant for a false return as constable of St Louis township. The declaration contained but one count, and in substance averred, that the plaintiff recovered before a justice of the peace in St. Louis township a judgment against one H. L. Greene for seventy-eight dollars and eighty cents, with damages and costs; that on this judgment an execution issued, directed to defendant; that under said execution, defendant levied on sufficient goods and chattels of said Greene to satisfy said judgment, but notwithstanding such levy, defendant falsely and fraudulently returned that said Greene had not any goods or chattels in his township whereof he could cause to be levied the debt and damages aforesaid.
Upon the trial, the plaintiff proved the judgment before the justice, the issuing of the execution, and the return upon the same, which are in the following words: It was admitted, that the property levied on by the sheriff, and found by the jury to belong to Kennerly, was sufficient to have satisfied the execution. It was also admitted, that the verdict of the jury, on the trial of the right of property, was as stated in the sheriff's return.
The plaintiff then offered to prove, that immediately upon the rendition of said verdict, he directed said defendant to proceed and sell so much of said property levied on, as aforesaid, as would satisfy his said judgment against Greene, notwithstanding said verdict, and that he at the same time offered a good and sufficient indemnity to said constable for so doing, to the admission of which evidence objection was made by defendant, and sustained by the court. The plaintiff then offered to prove that said verdict was wrong, which the court also, on objections being made, refused to admit. To the several objections of the court on this subject, exceptions were duly taken and saved by bill of exceptions.
The plaintiff then introduced evidence to show that there was property in the house of said Greene, at the time of the levy, other than that which had been levied on, to the amount of forty dollars, or thereabouts. The plaintiff also asked the court to instruct the jury, “that if they believed, from the evidence, that there was property belonging to and in the possession of H. L. Greene (other than the property levied on by defendants), and which the defendant might have levied on under the plaintiff's execution, they must find for plaintiff.” The court refused this instruction. The verdict was for the defendant. A motion for a new trial was made and overruled, and exceptions duly taken and saved to the action of the court on this subject.
How far the inquisitions taken in pursuance of our statutes, to ascertain the right of property which has been levied on under execution, will protect the officers who act in accordance with such verdicts, is a question which has never been directly passed upon by this court. It is a very important question in the practical administration of justice.
By the common law the sheriff might summon a jury to satisfy himself of the right...
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State ex rel. Kearney v. Finn
...to executions, it is the duty of the officer to use reasonable diligence in searching for property whereon to levy the same. Fisher v. Gordon, 8 Mo. 386; State ex rel., etc., v. Ownby, 49 Mo. 72; Taylor v. Wimer, 30 Mo. 126. He must execute the writ without unreasonable delay. Douglass v. B......
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