Mccorcle v. Morton, Case Number: 23775
| Court | Supreme Court of Oklahoma |
| Writing for the Court | PER CURIAM. |
| Citation | 44 P.2d 9,1935 OK 465,171 Okla. 632 |
| Decision Date | 23 April 1935 |
| Docket Number | Case Number: 23775 |
| Parties | McCORCLE et al. v. MORTON |
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
¶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.
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...
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Smith Eng'g Works v. Custer, Case Number: 30521
...426; Jordan v. Neer, 34 Okla. 400, 125 P. 1117; Taylor v. Morgan, 43 Okla. 142, 141 P. 679. In this connection, see McCorcle v. Morton, 171 Okla. 632, 44 P. 2d 9, and Ingles v. Holtze, 191 Okla. 378, 130 P. 2d 302. ¶26 In Ingles v. Hotze, supra, we said:"The great weight of authority and es......
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Maryland Casualty Co. v. Alford, No. 1946.
...limit the liability to acts done by virtue of office.2 Oklahoma has adopted the broader rule. See McCorcle v. Morton, 171 Okl. 632, 44 P.2d 9. In Meek v. Tilghman, 55 Okl. 208, 154 P. 1190, 1191, the court "The defendants cite numerous authorities to the effect, that a peace officer's bonds......
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Riddle v. Bishop, Case Number: 28181
..."claimed by any person other than the defendant," the officer may require tin indemnity bond. We said in McCorcle v. Morton (1935) 171 Okla. 632, 44 P.2d 9, that "no judicial function is vested in the sheriff to ascertain the true ownership of property, and * * * in the absence of some pers......
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Ingles v. Hotze, Case Number: 30316
...unduly lengthening this opinion to distinguish each of the above-cited cases, we will refer to the later case of McCorcle v. Morton, 171 Okla. 632, 44 P.2d 9, which analyzes the general holdings in most of the above and other earlier Oklahoma cases. In the body of the opinion it is stated:"......
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Smith Eng'g Works v. Custer, Case Number: 30521
...426; Jordan v. Neer, 34 Okla. 400, 125 P. 1117; Taylor v. Morgan, 43 Okla. 142, 141 P. 679. In this connection, see McCorcle v. Morton, 171 Okla. 632, 44 P. 2d 9, and Ingles v. Holtze, 191 Okla. 378, 130 P. 2d 302. ¶26 In Ingles v. Hotze, supra, we said:"The great weight of authority and es......
-
Maryland Casualty Co. v. Alford, No. 1946.
...limit the liability to acts done by virtue of office.2 Oklahoma has adopted the broader rule. See McCorcle v. Morton, 171 Okl. 632, 44 P.2d 9. In Meek v. Tilghman, 55 Okl. 208, 154 P. 1190, 1191, the court "The defendants cite numerous authorities to the effect, that a peace officer's bonds......
-
Riddle v. Bishop, Case Number: 28181
..."claimed by any person other than the defendant," the officer may require tin indemnity bond. We said in McCorcle v. Morton (1935) 171 Okla. 632, 44 P.2d 9, that "no judicial function is vested in the sheriff to ascertain the true ownership of property, and * * * in the absence of some pers......
-
Ingles v. Hotze, Case Number: 30316
...unduly lengthening this opinion to distinguish each of the above-cited cases, we will refer to the later case of McCorcle v. Morton, 171 Okla. 632, 44 P.2d 9, which analyzes the general holdings in most of the above and other earlier Oklahoma cases. In the body of the opinion it is stated:"......