Goodbar v. Brooks
| Citation | 22 S.W. 96,57 Ark. 450 |
| Parties | GOODBAR v. BROOKS |
| Decision Date | 25 March 1893 |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court, HUGH F. THOMASON, Judge.
Sarah E. Howell, the Citizens' Bank of Van Buren, and the Shibley-Wood Grocery Co. sued Fry & Ford in the Crawford circuit court, and procured writs of attachment to be placed in the sheriff's hands and to be levied, in the order named, upon a stock of goods belonging to defendants. Subsequently Brooks, Neely & Co. sued the same firm in the United States circuit court for the western district of Arkansas, and procured an attachment to be issued. The marshal made a constructive levy upon the stock of goods in the sheriff's hands by delivering to him a copy of the attachment and notifying him of the contents thereof. Afterwards Goodbar & Co. and Goodbar, White & Co. sued Fry & Ford in the Crawford circuit court, and had the sheriff levy writs of attachment in their favor upon the same stock of goods, subject to the prior levies thereon. All of the various attachments were sustained in the courts from which they were issued.
Brooks Neely & Co. made themselves parties by intervention in the attachment suits pending in the Crawford circuit court alleging, in addition to the foregoing facts, that the stock of goods levied upon by the sheriff had been sold under order of the Crawford circuit court, and that the proceeds were in the hands of the sheriff. Petitioners asked that the proceeds be distributed so as to pay off in the order named, the claims of Sarah E. Howell, the Citizens' Bank of Van Buren and the Shibley-Wood Grocery Co. and that the residue be applied to the payment of their claim.
Goodbar & Co. and Goodbar, White & Co. resisted the petition, and asked that the residue, after satisfying the claims of the three prior creditors above named, be applied to the payment of their claims respectively.
It was admitted that the facts alleged in the petition of Brooks Neely & Co. were true. The trial court granted the petition of Brooks, Neely & Co., and made an order of distribution accordingly. Goodbar & Co. and Goodbar, White & Co. have appealed.
Affirmed.
T. P. Winchester and Preston C. West for appllants.
1. Attachment is purely a statutory remedy, and all questions must be determined by the statutes. Drake, Att. (5th ed.), sec. 4a; 17 Ark. 482. A valid levy of attachment can be made, on property susceptible of manual delivery, only by an actual caption by the officer holding the writ. Mansf. Dig. sec. 320; 5 Ark. 422; 17 id. 481; 5 F. 895; Drake, Att. secs. 256-7; Waples, Att. pp. 175-6-7; 2 N.H. 66; 8 Conn. 332; 26 Kas. 299; 10 Cush. 269; 57 Iowa 257; 25 id. 464; 23 id. 453; 19 Wend. 495; 35 Ala. 668; 2 N.H. 317.
2. There can be no joint or partnership levy, by officers from different jurisdictions, upon the same goods. 5 F. 895; 20 How. 583; 26 Kas. 299; 2 N.H. 68.
3. The lien of an attachment is inchoate until levy by actual caption. Mansf. Dig. sec. 325; ib. sec. 320; 39 Ark. 101; 18 Ark. 419; 19 Mass. 209; 18 Mo. 29. When once taken thus it is in custodia legis, and cannot be again seized by process from any other court, or by any other officer than the one in whose hands the first process was placed. Drake, Att. 267; Freeman, Ex. sec. 135; Herman, Ex. 173; 5 F. 895; 26 Kas. 299; 2 N.H. 66; 20 F. 426; 24 id. 898; 10 Pet. 400; 20 How. 483; 4 id. 4; 24 id. 450; 3 Wall. 334; 17 How. 471; 7 id. 625; 117 U.S. 201; 7 Minn. 104; 10 Johns. 129; 16 Mass. 420; 16 Johns. 286; 34 Ala. 101; 1 Woolw. 324; 2 Wood, 409; 2 Abb. U.S. 151. At common law the sheriff could not make a second levy. 15 Ark. 55; 2 id. 595.
Sandels & Hill for appellees.
This same case was before Judge Parker, and his decision, reported in 45 F. 776, presents appellees' case fully and entirely. The appellees have followed the procedure outlined and directed by the Supreme Court of the United States, the Federal circuit courts, and all the State courts wherein the question has arisen. The entire question is so fully discussed and so completely settled by the authorities that we feel it a work of supererogation to do more than cite them. See 124 U.S. 131; 110 U.S. 276; 17 F. 167; 77 Mo. 331; 20 Conn. 364; Drake on Att. secs. 251, note 6. Sections 319, 356, 358 and 359, Mansfield's Digest, provide all statutory aids to the jurisdiction of the State circuit court in this matter.
At the time of the action taken by the marshal under the order of attachment issued by the Federal court, the goods on which he sought to levy were held by the sheriff by virtue of an attachment sued out of the Crawford circuit court. They were therefore in the custody of the law, and could not be subjected to a second attachment if it operated to disturb the sheriff's possession. This being so, the appellants contend that the marshal could not make a valid levy, for the reason, as they insist, that a seizure of the goods was essential to such a levy, and this would necessarily have withdrawn them from the possession of the sheriff.
A section of the Arkansas code directs that the officer executing an order of attachment upon personal property, capable of manual delivery, shall do so "by taking it into his custody and holding it subject to the order of the court." Mansf. Dig. sec. 320. This provision by its terms requires an actual seizure of the property. But that it applies only to a first attachment is apparent from the provisions found in other sections of the code. One of these is that "where there are several orders of attachment against the same defendant, they shall be executed in the order in which they were received by the sheriff or other officer." Mansf. Dig. sec. 319. By another section it is provided that "where several attachments are executed on the same property, the court, on the motion of any one of the attaching plaintiffs, may order a reference to a commissioner to ascertain and report the amounts and priorities of the several attachments." Mansf. Dig. sec. 359. A further provision of the code is that where the attachments pending in the circuit court and in the inferior courts of a county have been levied upon the same property in whole or in part, it shall be the duty of either of such courts upon motion to make an order for the removal of the actions pending in the inferior court to the circuit court for trial in the latter court as if originally brought there. Mansf. Dig. sec. 386. The next succeeding section of the same statute provides for the removal of actions in which attachments are pending and have been levied on the same property, by change of venue, so as to have them all on the same docket and under the control of the same court, when this appears to be necessary for the proper distribution of the attached property and the adjustment of the rights of the parties. Mansf. Digest, sec. 387. Other sections contain provisions under which "any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof," present his complaint to the court stating a lien on the property acquired by a different attachment; and on proof of such lien it is made the duty of the court to "make such order as may be necessary to protect his rights." Mansf. Dig. secs. 356, 358.
The application of the section from which our second quotation is made (Mansf. Dig. sec. 319) is clearly confined to orders of attachment executed by the same officer upon the same property; and although the officer cannot, except in a constructive sense, seize goods of which he already has the actual possession, the statute treats a second or subsequent levy when thus made as of equal validity with the first. Claflin v. Furstenheim, 49 Ark. 302, 5 S.W 291. All the other provisions to which we have referred, except that embraced in section 320 of Mansfield's Digest, also contemplate successive levies upon the same property; and yet it is plain that such levies cannot in all cases be made by the officer executing the first attachment. Thus for instance while an attachment issued by a justice of the peace may always, under our statutes, be served by a sheriff, a constable cannot, unless the offices of sheriff and coroner are both vacant, or those officers are defendants or interested in a suit, execute an attachment issued by the circuit court. Mansf. Dig. secs. 4037, 606, 607. An attachment issuing from the circuit court against property in the custody of the constable under a prior attachment from a justice's court must therefore usually be levied by the sheriff, or not be levied at all; and his levy could not of course be made by an actual seizure. Another case may occur in which a constructive levy by an officer not having the custody of the property to be attached would be equally necessary to a just administration of the law. Ordinarily an attachment can only be served within the territorial jurisdiction of the court which issues it; and when the property on which it is to be levied is out of the county where it is issued, the writ will go to the sheriff of the county where the property is found. Mansf. Dig. sec. 314. But a section of the code provides that if, after an order of attachment is placed in the hands of a sheriff, any property of the defendant is removed from the county, the sheriff may pursue and attach the same in another county within twenty four hours after its removal. Mansf. Dig. sec. 326. And we cannot think the law intends that the sheriff's pursuit shall prove fruitless whenever the property, before he reaches it, is seized by another officer, although the latter takes it under an attachment which it will more than satisfy. In such case if the pursuing sheriff cannot make a constructive levy, it is easy to see that the creditor he represents may be placed...
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