Mccorcle v. Morton

• Decision Date: 23 April 1935
• Docket Number: Case Number: 23775
• Parties: McCORCLE et al. v. MORTON
• Court: Oklahoma Supreme Court

1935 OK 465

44 P.2d 9

171 Okla. 632

McCORCLE et al. v. MORTON

Case Number: 23775

Supreme Court of Oklahoma

Decided: April 23, 1935

Syllabus

¶0 1. SHERIFFS AND CONSTABLES--Official Act of Sheriff in Making Levy on Property of Stranger to Judgment.

A sheriff, armed with a valid execution, acts officially in making a levy on the property of a stranger to the judgment in the absence of proof to the contrary.

2. SAME--Liability on Official Bond.

The sureties on the official bond of a sheriff are liable to the owner of the property seized under execution for damages thereby sustained, where the owner was a stranger to the judgment and when the levy was made in the performance and scope of official duty.

Appeal from District Court, Tillman County; Frank Mathews, Judge.

Action by R.T. Morton against J.D. McCorcle, the Globe Indemnity Company and others. Judgment for plaintiff, and defendants J.D. McCorcle and the Globe Indemnity Company appeal. Affirmed.

Wilson & Roe, for plaintiffs in error.

R.L. Christian, for defendant in error.

PER CURIAM.

¶1 This action was brought in the district court by R.T. Morton for damages growing out of the wrongful levy of a writ of execution by J.D. McCorcle, sheriff of Tillman county, Okla. The writ was directed against J.E. Vehmeyer, by virtue of a judgment obtained against him in favor of C.L. Smart and W.C. Johnson. At the time of the levy, which was about to be made on growing wheat, the plaintiff, Morton, claimed the wheat as his property, and the sheriff, through Roy Moss, undersheriff, demanded of the execution creditors an indemnifying bond, which was given, signed by themselves, W.O. Smart, and Carl Cassidy. Plaintiff named the sheriff, J.D. McCorcle, and the surety on the sheriff's official bond, the Globe Indemnity Company, a corporation, as parties defendant, and after they entered the case, through their amended separate answers, the indemnity undertaking was set up, and both principals and sureties thereon were made defendants at their instance and request.

¶2 The law permits the sheriff, undersheriff, or deputy sheriff to decline to levy on goods and chattels the ownership of which is claimed by a third party. The officer has the privilege, however, of demanding an undertaking to indemnify him against damage in the event he elects to levy. C. O. S. 1921, sec. 699 (O. S. 1931, sec. 446).

¶3 When this wheat was claimed by Morton, the undersheriff declined to make levy thereon unless the judgment creditors furnished him with a satisfactory indemnity bond. This they did. Thereupon he made the levy and took possession of the wheat.

¶4 The salient facts are not in dispute in this appeal. It is apparent from the evidence that the property levied on, 623 bushels of wheat, was Morton's property, and was not subject to the payment of the Vehmeyer judgment; that the sheriff kept Morton out of the use and possession of his property from June 27, 1928, until April 21, 1930, and retained official possession and control thereover during the entire period. The evidence fairly proves the value of the wheat at the time and place of the levy, the cost of harvesting the same, expenses contingent on storage, and its value when returned to Morton.

¶5 The case was tried to a jury, which returned a verdict against the sheriff and the surety on his official bond, the Globe Indemnity Company, a corporation, for the sum of $479.13, and further found "in favor of J.D. McCorcle and Globe Indemnity Company, against C.L. Smart, W.O. Smart and Carl Cassidy, in the above sum."

¶6 This appeal is brought by the sheriff and his surety, the Globe Indemnity Company, the others not joining.

¶7 The issue is whether or not the Globe Indemnity Company, the surety on the sheriff's official bond, is jointly liable with the sheriff for the damage sustained by Morton.

¶8 It would be a very loose statute which would permit an officer to levy on the property of a stranger to his execution and retain it for an indefinite period without incurring liability, or leaving any recourse open to the property owner to recoup his damage. Armed with a perfectly good execution, an officer may proceed to make a levy and easily make an honest mistake. No judicial function is vested in the sheriff to ascertain the true ownership of property, and in a case like this one, in the absence of some personal knowledge, he is compelled to rely on information obtained from such source as may be available as to the ownership of the property intended to be taken into his official custody.

¶9 The lawmakers of Oklahoma have amply anticipated and provided against such a contingency. The officer cannot evade liability, but he may be made whole and protected against an honest and unavoidable mistake. The very purpose of such an undertaking in indemnity, running to the sheriff, is that of protection, when in a conscientious attempt to exercise his official duty, because of faulty information or at debtor's demand, the officer makes an honest mistake. In this case, in an endeavor to perform his full duty, the officer took possession of property which belonged to a stranger. It was the official act of taking and retaining which caused the damage, and such action was purely official, as distinguished from personal.

¶10 As to the liability of the sheriff, the statute is so clear and its intent and purpose so unequivocal as to render undebatable his liability for the reasonable consequences of his official acts and those of his subordinates. If the action be without color of office, it is personal and a mere trespass, for which he or they must answer personally, as the case may be. Such acts usually are performed when the officer is not armed with due process of law, or when he acts under the belief that he has an official right, which he does not actually or lawfully possess, to perform an act sua sponte. But, when his acts are performed within the scope of official authority and damage thereby results to a stranger to the process to which the action is performed, the stranger may look also to the official bond of the officer for redress.

¶11 In this state, heretofore, no question has been raised on the liability of a sheriff's official bond in a like case. The text-books and the weight of authority in general, together with the almost irresistible conclusion reached upon a reading of Oklahoma law on the subject, are convincing that one damaged by the official action of a sheriff, as here, may look to...