Lesem v. Neal

• Decision Date: 31 August 1873
• Citation: 53 Mo. 412
• Parties: SAMUEL J. LESEM, et al., Respondents, v. JAMES A. NEAL, Appellant.
• Court: Missouri Supreme Court

53 Mo. 412

SAMUEL J. LESEM, et al., Respondents,

v.JAMES A. NEAL, Appellant.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Linn Circuit Court.

A. W. Mullins, for Appellant.

I. Plaintiffs' right of action, if any they had, was barred by the statute of limitations. (W. S., 918, § 11; Mitchell vs. Falbright, 32 Mo., 551.)Burgess & Mansur, for Respondents.

I. The statute did not begin to run until the appellant made return on the writ of attachment, showing what he did with the attached goods, which was not until the 10th day of December, 1870. Simply depositing the writ in the clerk's office, without showing what had been done with it, was no return at all. (Kirk vs. Sportsman, 48 Mo., 383; State vs. Minor, 44 Mo., 373; State vs. Gutzweiler, 49 Mo., 17; Nelson vs. Brown, 23 Mo., 13.)

II. Respondents were not affected by facts attending the attachment which did not appear in the return. (2 Hill. Torts, 222, § 4; Franklin Bank vs. Small, 26 Me., 136.) And the return in this case did not show, that the dry goods had ever been attached or released, until it was amended by the appellant on the 10th day of December, 1870. The statute of limitations did not begin to run in his favor until that time. (2 W. S., 918, § 11; Foley vs. Jones, 52 Mo., 64; Miller vs. Woodward, 8 Mo., 169.)

VORIES, Judge, delivered the opinion of the court.

The petition of plaintiffs in this cause alleges, that on the 4th day of August, 1866, S. H. Herryford and Bond R. Lowry were indebted to plaintiffs in the sum of $335.25; that on said day plaintiffs commenced suit, by way of attachment, against said Herryford and Lowry, in the Linn Circuit Court; that an attachment was duly issued in said cause against the property of the said Herryford and Lowry, which said writ of attachment was on said day delivered to the defendant Neal, who was at the time the sheriff of said county, to be by him executed according to law; that the defendant as such sheriff, on the 6th day of August, 1866, seized and attached, as the property of the said Herryford and Lowry, a stock of dry goods and groceries, which are charged to have been the property of said Herryford and Lowry and of the value of one thousand dollars and about all of the property of said Herryford and Lowry subject to said attachment; and that they are now hopelesslyinsolvent; that the attachment was sustained in the cause by the Linn Circuit Court, and judgment rendered in said court in favor of plaintiffs for said debt and interest amounting to $382.25, which judgment was rendered on the 16th day of November, 1867; that no part of said judgment has been or could be collected; that after the seizure of said property by said defendant by virtue of said attachment, on the 7th day of August, 1866, the defendant, without the knowledge or consent of plaintiffs, released from said attachment and levy aforesaid, all of said goods and turned them over to said Herryford and Lowry. For the releasing of the property the plaintiffs brought this suit, setting up the foregoing facts, and charged, that by said unlawful act of defendant they have lost their debt, and been damaged in the sum of five hundred dollars. The defendant by his answer only sets up the statute of limitations: “That the cause of action mentioned in plaintiffs' petition did not accrue within three years next before the commencement of this suit.”

This answer was denied by the replication filed by the plaintiffs.

The cause was tried by the court.

It appears from the evidence preserved in the bill of exceptions, that the attachment was levied by the defendant, as sheriff, on the 6th day of August, 1866, on all of the title and interest of the said Herryford and Lowry in and to a saloon, which consisted of liquors and bar fixtures and other property in said saloon, and a stock of dry goods consisting of dry goods and groceries; that defendant never took further control of the dry goods store than to take the key and lock the store up for one or two days, when the goods being claimed by others, and the defendant, believing that he had enough goods or other property to satisfy said attachment, gave up the goods in the dry goods store except eleven pairs of boots which the defendant retained and applied on the attachment. The defendant in indorsing the levy and return on the attachment made no mention of these dry goods or the dry goods store, except the eleven pairs of boots which he had retained, but by his return only showed the seizure of the saloon and goods therein and the eleven pairs of boots.

It is shown by the record, that after this return was made by the sheriff, on the 10th day of December, 1870, at the suggestion of the attorney of the plaintiffs in the cause, the said sheriff was permitted to amend his return on the attachment, and did so amend it as to make it show the levy upon the stock of dry goods aforesaid, and the following entry was also inserted at the foot of the return: “The dry goods were afterwards released because of there being a sufficient amount of other property levied upon to pay the debt and costs.” It was also shown, that these dry goods released were worth from one thousand to twelve hundred dollars. It is further shown by the record read in evidence in the case of plaintiffs against Herryford and Lowry, that after the sheriff had released the dry goods from the levy of the attachment on the 11th day of October, 1866, one Robert Holly filed an interplea in the cause, claiming the saloon property levied on as his property; and that a trial was had thereon, in which the interpleader recovered the property to the value of four hundred and thirty-three dollars, and judgment was rendered against the interpleader as to the balance of the property levied on, and, that after the plaintiffs had recovered their judgment, no money could be made on it.

There is nothing in the evidence to show what, if anything, was left after the recovery by the interpleader of the property to the value of $433.

At the close of the evidence the court, at the instance of the plaintiffs, declared the law to be as follows:

“That it stands admitted by the pleadings, that on the 4th day of August, 1866, plaintiffs were partners; at which time S. H. Herryford and Bond R. Lowry were indebted to them by their promissory note of date, June 15th, 1866, in the sum of three hundred and thirty-five and 25-100 dollars; that on the 4th day of August, 1866, they commenced suit by attachment in this court against said Herryford and Lowry on said note, and caused a writ of attachment to issue thereon and directed and delivered to the defendant, who was, at the time of serving the writ, the sheriff of said Linn county, and who, by virtue of said writ, did, on the 6th day of August, 1866, seize and levy upon one stock of dry goods and groceries of which said Herryford and Lowry were then the owners, and which he afterwards released without the knowledge or consent of plaintiffs and by reason of which they have been injured.”

“That according to the evidence in this case, plaintiffs' cause of action was not barred by the statute of limitations at the time of the commencement of this action.

If the court finds for the plaintiffs, it will assess their damages at any sum which it may believe from the evidence plaintiffs have sustained by reason of the acts of defendant, not exceeding the sum of five hundred dollars.”

These declarations of law were objected to by the defendant, and his objections being overruled, he excepted.

The court then refused the following declarations of law asked for by the defendant:

“The plaintiffs' petition shows, that the defendant's liability was incurred, and the plaintiffs' cause of action accrued, on the -- day of August, 1866, at the time when the stock of dry goods were released; and that unless the plaintiffs' action was commenced within three years next after that time, the plaintiffs cannot recover.”

“The pleadings and evidence in this cause show, that the cause of action set up in the petition did not accrue within three years next before the suit was commenced.”

“If the court should find from the evidence, that the plaintiffs are entitled to recover, they cannot in any event recover of defendant more than the value of the interest of Herryford and Lowry in the goods attached with interest thereon; and if the court find from the evidence, that Cantrell and Harlow were the owners of the goods seized upon and attached by defendant as sheriff at the time thereof, and that said Cantrell and Harlow were such owners when said goods were released by defendant as such sheriff, then plaintiffs are only entitled to recover nominal damages in this case.

The defendant excepted to the opinion of the court in refusing these declarations of law.

The court then rendered a judgment against the defendant for $536.57 with costs.

The defendant then filed his several motions for a new trial and in arrest of judgment, assigning as causes therefor the opinions of the court excepted to, as well as the other usual causes set forth in such motions; which motions being overruled, the defendant excepted and appealed to this court.

There are two points raised by the appellant in this court upon which he relies as grounds for a reversal of judgment:

First--That the cause of action was barred by the statute of limitations, and that his plea of the statute ought to have been sustained by the court; and

Second--That the court wrongfully refused to declare the law...