Jones Lumber & Mercantile Co. v. Faris
| Decision Date | 17 October 1894 |
| Citation | 60 N.W. 403,6 S.D. 112 |
| Parties | JONES LUMBER & MERCANTILE CO. v. FARIS, Sheriff. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where the court, at the close of the testimony, directed a verdict, such ruling, if erroneous, is an error of law occurring on the trial, and, if properly excepted to, may be reviewed in this court without a motion for a new trial.
2. To make a good levy under an attachment, the officer must take actual possession of the property attached, as far as, under the circumstances, this is practicable. He must put himself in position to, and must in fact, assert and enforce a dominion over the property adverse to and exclusive of the attachment debtor, and such property must be in his substantial presence.
3. To keep such levy good as against a subsequent purchaser of the attached property, the officer must maintain a possession visibly adverse to such attachment debtor, as by a custodian keeping the same under lock and key, or some other equivalent act of exclusive possession and control.
4. Where the attaching officer, after the levy, left the property attached in the building of the debtor, who occupied and used the room in which such property was left surrendering the key to him, neither seeing nor giving any attention to the property for three months and a half, there being all the time nothing about the property or its surroundings to indicate that such officer claimed possession of it, held, that the attachment was abandoned as to third persons.
5. Held, further, that one who, at the end of said three and a half months, purchased the attached property from the attachment debtor, took the same free from the lien of the attachment.
6. Held, further, that such purchaser's rights were not affected by the fact that he knew of the original levy, for the fair and legal inference from the subsequent facts was that such levy had been abandoned.
Appeal from circuit court, Edmunds county; H. G. Fuller, Judge.
Action by the Jones Lumber & Mercantile Company against Robert D Faris, sheriff, for the conversion of a safe. From a judgment for plaintiff, defendant appeals. Affirmed.
L. W Crofoot and Dudley P. Wayne, for appellant. C. H. Barron and Gaffy & Gunderson, for respondent.
Respondent, as plaintiff, brought this action to recover the value of a safe alleged to be the property of, and to have been taken from the possession of, plaintiff by defendant. Defendant justified as sheriff, on the ground that the taking was by virtue of an attachment against one Hopkins, who was the owner of the safe; that plaintiff bought and got possession of the safe while it was so under attachment, and that it had notice of the attachment before and at the time it so purchased. The regularity of the attachment proceedings was not questioned, and it is evident that the case hinged upon the question whether the sheriff held the safe under a valid and effective levy at the time of plaintiff's alleged purchase from Hopkins. At the close of the testimony on both sides the court directed the jury to return a verdict for plaintiff for the value of the safe as they should find it. From the judgment entered on such directed verdict, and apparently without a motion for a new trial, the defendant appeals. He assigns as error, among other things, the direction by the court of a verdict for plaintiff. Respondent contends at the outset that this ruling cannot be reviewed in this court, because no motion for a new trial was made, and cites such cases as Pierce v. Manning (S. D.) 51 N.W. 332, where it is held that the question of the sufficiency of the evidence to support the verdict of the jury will not be reviewed until such question has been presented to the trial court by motion for a new trial. But this is not such a case. Here the jury has never passed upon the evidence. The verdict is not the result of their deliberation upon the evidence and its probative force. It is not their verdict upon a question of fact, but the court's ruling upon a question of law. The court took the case from the jury, and disposed of it purely as a question of law. If such ruling was wrong, it was error in law occurring at the trial (Cravens v. Dewey, 13 Cal. 40), and may be reviewed without a motion for a new trial (Mercantile Co. v. Faris [S. D.] 58 N.W. 813). There is nothing before us to indicate whether the trial judge directed the verdict on the theory that no sufficient levy was shown to have been made in the first instance, or that, having been made, the lien of the sheriff thereunder had been lost by his subsequent treatment of the attached property.
First then, as to the levy. The sheriff testified: That in company with the attachment debtor and a Mr. White he went to the house of such debtor, and then and there made a list of the articles, including the safe, which he claimed to have levied upon. The safe was in an adjoining room. He did not then go into that room. After making such list, he took a receipt for the safe from Mr. White, and took the key of the room in which the safe was. The attachment debtor gave notice of his claim of exemptions, and served a schedule, which did not include the safe. (What became of the attached property, except the safe, does not appear, and it is not material, as this controversy involves only the safe.) That at or before the time of the appraisal the officer placed a deputy in charge of the room and safe, and so continued him until some two or three weeks later, when the attachment debtor complained that he did not want the deputy there, but said, "if he would remove his man or deputy from the room, that they might leave the...
To continue reading
Request your trial