Harris v. Stewart

• Decision Date: 22 October 1898
• Citation: 47 S.W. 634
• Parties: HARRIS, Sheriff, et al. v. STEWART.
• Court: Arkansas Supreme Court

47 S.W. 634

HARRIS, Sheriff, et al. v. STEWART.

Supreme Court of Arkansas.

October 22, 1898.

Appeal from circuit court, Lafayette county; Charles W. Smith, Judge.

Action by W. W. Stewart against S. L. Harris, as sheriff, and J. F. Looney, to recover damages for an alleged illegal seizure of goods under an execution. From a judgment for plaintiff, defendants appeal. Reversed.

The complaint and answer as set forth in appellants' abstract of record are as follows:

The complaint alleges that: "On the 1st day of July, 1893, one Alex Stewart was attached under a writ of attachment from the Lafayette circuit court in favor of S. G. Dreyfus & Co. vs. A. Stewart, and a large lot of personal property taken into the possession of the sheriff under said writ, among said property there being four (4) log wagons, of the value of two hundred and fifty ($250) dollars. That on the 28th of July, 1893, W. W. Stewart interpleaded for said property, alleging that said attached property was his property, and not that of A. Stewart, and on the same day entered into a bond, with surety, conditioned that if the property, on the trial of such interplea, be found to be the property of A. Stewart, and judgment was recovered against said A. Stewart, that said W. W. Stewart would deliver said property to the sheriff whenever demanded by him after execution upon such judgment came to his hands to be levied thereon. That, on the trial of said interplea, judgment was rendered against said W. W. Stewart, this interpleader. That afterwards, on the ____ day of November, 1894, S. L. Harris, as sheriff, under an execution issued upon a judgment in favor of one J. F. Looney against A. Stewart, levied upon, advertised for sale, and did sell four (4) log wagons for the sum of $250, the identical wagons seized under said attachment suit, and for which the said W. W. Stewart interpleaded and gave bond. That on the 4th day of December, 1894, the said S. L. Harris, as sheriff, under an execution issued upon the judgment of S. G. Dreyfus & Co. against A. Stewart, demanded of W. W. Stewart the return of the property included in said interplea, of which the four wagons levied upon and sold by said Harris, as sheriff, under said execution in favor of J. F. Looney against A. Stewart, were a part. That in consequence of said seizure and sale by said sheriff, under said Looney execution, of the four wagons, the said W. W. Stewart could not deliver said property in accordance with his bond, and was compelled to pay to S. G. Dreyfus & Co. the sum of $250, the value of the said four wagons. That said four log wagons seized and sold by said Harris, as sheriff, as the property of A. Stewart, was the plaintiff's property, and not subject to said sale and seizure. That said four wagons were worth $250, and that by virtue of said seizure and sale of said wagons the said W. W. Stewart has been damaged in the sum of $250, and prays for judgment for said sum, with interest, costs, and other relief."

"In the first paragraph defendants deny that, in consequence of the seizure and sale of four log wagons by the defendant Harris, as sheriff, under an execution in favor of J. F. Looney against A. Stewart, the said W. W. Stewart, plaintiff, was compelled to pay to S. G. Dreyfus & Co. the sum of $250, the value of said wagons, or any other sum whatever; they deny that said four log wagons seized and sold by defendant Harris, as sheriff, as the property of A. Stewart, was the property of the plaintiff W. W. Stewart, and not subject to said seizure and sale under said execution; they deny that by virtue of said seizure and sale of said wagons the plaintiff, W. W. Stewart, has been damaged in the sum of $250, or any other sum whatever. In the second paragraph of their said answer, as a further defense, the defendants allege: That on the 3d day of July, 1893, defendant Looney commenced an action in the Lafayette circuit court against one A. Stewart for the recovery of $190, due upon contract, and made and filed in said court his affidavit and bond for a general order of attachment against the property of said A. Stewart; that said order was, on said 3d day of July, 1893, by the clerk of said court, duly issued, directed and delivered to the then sheriff of the county, commanding him therein to attach and safely keep the property of A. Stewart in his county, not exempt from execution, or so much thereof as will satisfy the claim of said Looney for $190, and $30 for the costs thereof. That under and by virtue of said writ of attachment said sheriff forthwith levied upon and attached in his county a stock of merchandise, five log wagons, a two-horse wagon, and thirteen stock horses, being the same property, then in his possession and custody, under a levy of attachment previously made on said day, under an order of attachment issued out of the Lafayette circuit court in a suit then therein pending wherein S. G. Dreyfus & Co. were plaintiffs and the aforesaid A. Stewart was defendant. That on the 28th day of July, 1893, W. W. Stewart made and delivered to the sheriff his affidavit that he was the owner of the property attached as aforesaid, and that the same was not liable to seizure on the order of attachment issued in said suit of S. G. Dreyfus & Co. against A. Stewart. That thereupon the sheriff chose two citizens of Lafayette county, where the writ was levied, who, on their oath, ascertained the value of said property so attached and claimed by the said W. W. Stewart to be $3,288, as follows:

                Stock of merchandise ................. $1,973
                Five (5) log wagons ..................    420
                One two-horse wagon ..................     50
                Thirteen (13) stock horses ...........    845
                                                      _______
                   Total ............................. $3,288
                

— That thereupon said W. W. Stewart gave bond, with security, in favor of S. G. Dreyfus & Co., in the sum of $6,660, conditioned that he...