Knight v. Davis Carriage Co.

• Decision Date: 14 January 1896
• Citation: 71 F. 662
• Parties: KNIGHT et al. v. DAVIS CARRIAGE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

71 F. 662

KNIGHT et al. v. DAVIS CARRIAGE CO.

United States Court of Appeals, Fifth Circuit.

January 14, 1896

This suit is for damages for alleged conversion of property. The action was commenced in the circuit court of the United States for the Northern district of Texas, at Dallas, by the Davis Carriage Company, a corporation under Ohio laws, as plaintiff, against George A. Knight, United States marshal of the Northern district of Texas, and his official bondsmen all citizens of the state of Texas; and by a first amended original petition, filed February 4, 1893, the plaintiff alleged that on January 27, 1892, it was possessed of and owned 56 buggies and vehicles, of the value of $4,271.57 that the defendant Knight was then the qualified and acting marshal of the United States for the Northern district of Texas, and that, as such officer, he had executed a bond in terms of the law, with the other defendants, John Herrman Benjamin N. Bryant, and W. K. Wheelock, as his sureties; that on the 27th day of January, 1892, said marshal had in his hands, in his official capacity, certain writs of attachment issued out of the circuit court of the United States for the Northern district of Texas, in certain cases wherein the Racine Wagon & Carriage Company and others were plaintiffs and J. B. Simpson was the defendant, which said writs commanded the said marshal to seize the property of the defendant J. B. Simpson sufficient to make the sums of money mentioned in said writs; that the said marshal, acting under and by virtue of the said writs, did unlawfully seize and take possession of the property of the plaintiff, viz. the 56 buggies and vehicles, an itemized list of which, with the value of each, the plaintiff attached as an exhibit to its pleading; that the said marshal thus converted to his own use the said property, whereby his official bond was breached; and therefore the plaintiff prayed judgment against the said defendants, the marshal and his official bondsmen, for the value of said property.

The defendant Knight and his bondsmen answered by original answer, and afterwards by their first amended original answer, containing, after a general denial, the plea that, if the property alleged to have been converted by the plaintiff was converted, the same was done by the marshal by virtue of a certain attachment writ issued out of the circuit court of the United States for the Northern district of Texas, in the suit of the Racine Wagon & Carriage Company v. J. B. Simpson, by which writ the defendant marshal was commanded to make certain moneys, in said writ specified, by seizure of the defendant Simpson's property; that, before a levy by virtue of said writ upon the property in controversy was made, the marshal exacted from plaintiff, the Racine Wagon & Carriage Company, an indemnity bond to secure him against damages, and that said bond was given to him by the plaintiff in said writ, the Racine Wagon & Carriage Company, on which bond J. C. O'Connor, U. F. Short, and M. L. Crawford were sureties, the said bond being conditioned to protect and indemnify and save harmless the said marshal from all costs, damages, attorney's fees, and other liabilities that the said marshal might incur or become liable to pay by reason of executing the said writ of attachment, etc.; that the said marshal had been put to the cost of $250 attorney's fees in the defense of this suit; and he prayed that the Racine Wagon Company and the sureties on said indemnity bond be made parties defendant, and that, if any judgment should be recovered by the plaintiff against the said marshal and his official bondsmen, they have judgment over against the plaintiff in said writ and the sureties on its indemnity bond for the same amount, and for the further sum of $250, as attorney's fees. Further, the said defendants pleaded that if the property sued for was levied upon and seized by the defendant Knight, marshal, as aforesaid, under said writ of attachment, then the said defendants deny that said property was ever converted by said marshal to his own use or to the use and benefit of the Racine Wagon & Carriage Company, the plaintiff in said writ; but defendants averred that said property was included in the stock of goods of the James B. Simpson Carriage Company, and, together with such stock, the property was situated in a storehouse in the city of Dallas, in which J. B. Simpson, the defendant in said attachment writ, was doing business, and that said goods in controversy being in said stock, and the said marshal and the plaintiff in the writ being ignorant of plaintiff's alleged title to same, the goods were unintentionally included in the levy upon a stock of goods of James B. Simpson, and without any intention whatever of injuring the plaintiff or trespassing on its rights or depriving it of its property; that the said property in controversy was never sold under the levy, nor moved out of the house in which the levy was made, but that, almost immediately after the levy was made, one William Bering filed with said Knight (marshal) his affidavit and claimant's bond, as provided by law, for the trial of right of property, thus claiming the stock of goods from the said officer, including the property sued for by plaintiff, and that said stock of goods, including the goods sued for, were by said Knight (marshal) then immediately turned over and delivered to said Bering, by virtue of his claimant's affidavit and bond, as the said Knight was in duty bound to do, and said goods were by the said Bering received in the same place and in the same condition as when the levy was made; that said Knight has nothing in his hands representing the property except the claimant's bond, which is conditioned according to the requirements of the statutes of the state of Texas. The defendants further specially pleaded that at the time that Bering executed the said bond and affidavit for the trial of the right of property, and claimed the stock of goods, he was acting as the agent of the plaintiff, and was fully authorized and empowered by the plaintiff, the Davis Carriage Company, to thus hold and claim said goods and property for the plaintiff, and that said goods for which the plaintiff sued were in the manner aforesaid claimed by Bering for the Davis Carriage Company, and by and with its authority and consent; that the said goods were never converted by the defendant marshal, but that same were returned to the plaintiff by and through its said agent Bering, in as good condition as when seized under said writ of attachment; that by reason of these facts, the marshal was not liable for the value of the goods to plaintiff; that plaintiff had suffered no damage by reason of the levy; that all of this property had been restored and received by it in the manner aforesaid after the levy was made. The two sureties on the indemnity bond, J. C. O'Connor and M. L. Crawford, filed their answer, and, after the general denial, adopted as their own the answer of their codefendants, and further pleaded that, if they were in any manner liable to plaintiff, it was by reason of their execution of the indemnity bond to the marshal; and they prayed that, in the event judgment was recovered against them, they have judgment over against the Racine Wagon & Carriage Company, principal in said indemnity bond, for a like amount. The Racine Wagon & Carriage Company and the other surety, U. F. Short, filed their amended answer; and, after certain demurrers to plaintiff's pleading, they pleaded the general denial, and a special answer, in substance the same as the special answer of the said Knight, marshal, and his official bondsmen, as above set out.

The plaintiff filed a replication, and, after certain demurrers to the pleading of the defendants, pleaded the general issue as to such answers, and specially replied that it was entitled to the possession of the goods on the 27th day of January, 1892, was the owner thereof, of which defendants had notice, and yet that these defendants willfully, maliciously, wrongfully, and without regard to the rights of plaintiff, wrongfully, and contrary to the expressed request of plaintiff, interfered with the goods of plaintiff, and exercised exclusive control and dominion over same, and illegally and wantonly seized and took possession of the property, and claimed the right to levy upon it and appropriate it to the satisfaction of the alleged debt of J. B. Simpson to the Racine Wagon & Carriage Company and others; that the plaintiff had informed the defendant marshal of its rights to the property immediately after the levy of the attachment upon it, and demanded possession, which was refused, and thereby it had been deprived of its property.

On the trial, among other evidence not material to the consideration of the case in this court, the following undisputed evidence was adduced, to wit:

Prior to the 12th of January, 1892, J. B. Simpson was doing business on the corner of Elm and Jefferson streets, in Dallas, Tex., under the trade name of the James B. Simpson Carriage Company, and that the business in which he was engaged was that of a wholesale and retail dealer in buggies carriages, and agricultural implements, and that the stock of goods of which he was in charge was made up of goods belonging to him and goods which had been consigned to him by other manufacturers and dealers, and included the goods in question, which had been consigned to, but did not belong to, James B. Simpson, but did belong to the Davis Carriage Company. That on the 12th of January, 1892, J. B. Simpson entered into a contract with one W. M. Bering, as follows: 'For value received, I have bargained, sold, and conveyed to W. M. Bering all my stock of buggies, vehicles, appurtenances,...