Heye v. Moody

• Citation: 4 S.W. 242
• Parties: HEYE and others v. MOODY and others.
• Decision Date: 12 April 1887
• Court: Texas Supreme Court

4 S.W. 242

HEYE and others v. MOODY and others.

Supreme Court of Texas.

April 12, 1887.

Appeal from Limestone county.

McLemore & Campbell and G. E. Mann, for appellants. Thomas J. Gibson, for appellees.

WILLIE, C. J.

On November 15, 1881, Oliver & Griggs sued out a writ of attachment against Bessling & Roller, which was on the same day levied by T. E. Jackson, sheriff of Limestone county, upon a stock of goods in Groesbeck and on the next day on a stock of goods in Mexia. After levying upon the Mexia stock, the sheriff returned to Groesbeck, leaving that stock, the storehouse in which it was contained, and its key, in charge of three persons, with instructions to close the doors, and make an inventory of the goods. Before leaving Mexia the sheriff was told that other attachments would soon be there, to which he replied that J. M. Waller, who was a constable and also Jackson's deputy, could serve any process that could be served by the sheriff. After Jackson had left, a writ of attachment in favor of Gust. Heye & Co., against Bessling & Roller was placed in the hands of Waller, who levied the same on the stock of goods in Mexia. Waller's return showed that the writ was levied by him upon said stock on November 16th, at 11 o'clock, as per inventory filed, subject to the levy of the attachment of Oliver & Griggs, and it was signed: "T. E. JACKSON, Sheriff of Limestone County. J. M. WALLER, Deputy." On the 19th Waller delivered the attachment to the sheriff, who filed it with the papers of the cause. Jackson reached Groesbeck on the 16th, and an attachment in favor of W. L. Moody was on the same day placed in his hands for levy. His return upon this writ showed that he levied it upon the Groesbeck stock at 1 o'clock P. M., and on the Mexia stock at 2:30 P. M of that day, subject to the Oliver & Griggs attachment. All of the attaching creditors obtained regular judgments upon their claims at the same term of the court. The sheriff sold the two stocks under order of court, and, after paying off the judgment of Oliver & Griggs, returned the balance of the proceeds of the sale, viz., $1,800, into court; and the present action tests the question as to whether this money shall be paid to Gust. Heye & Co. or to W. L. Moody & Co. The court below held that the goods, when levied upon under the attachment in favor of Oliver & Griggs, were in custodia legis, and could not be attached by another officer, though a deputy of the officer by whom the first levy was made; that the sheriff in possession alone could make such a levy; that the acts of the deputy were not by construction the acts of the sheriff, unless adopted and ratified by him; and that there was no such ratification. Upon this view of the law, judgment was rendered for W. L. Moody & Co., and this appeal is taken by the appellant from that judgment.

It is a general principle that goods attached by one officer and in his possession cannot be attached by another officer. The question as to whether it was rightfully applied by the court below in the present case depends upon whether the sheriff and his deputy were different officers.

Our statutes provide that sheriffs shall have power by writing to appoint one or more deputies who shall have power and authority to perform all the acts and duties required of their principals. Rev. St. art. 4520. All writs, including attachments, are directed to the sheriff or any constable, but may be executed by a deputy-sheriff, who makes his returns in the name of his principal. So far as the public is concerned, there is no difference between the persons and duties of the sheriff and his deputy. Either can perform, or can be compelled to perform, the same acts that are required of the other. When a writ reaches the hands of a deputy, it is in fact received by the principal. He is liable for its proper enforcement, and for all acts done by his deputy under its authority. If goods are tortiously seized under it by the deputy, the principal can be sued by the owner. If they are illegally disposed of by the deputy, the principal is responsible. As between the sheriff and the deputy, of course the former can make the latter responsible for such lapses as misconduct, but with this the public has no concern. It follows that, as to the public, whose servants these officers are, the acts of the deputy are the acts of the principal. The possession of the former is the possession of the latter. So far as the responsibilities of the office are concerned, the sheriff is liable for the acts both of himself and his deputy. So far as its rights and duties are concerned, they are in every respect identical. This is not only the true construction of our statute, but is clearly the rule at common law. Bac. Abr....