McDowell v. McCormick

• Decision Date: 07 October 1902
• Docket Number: 868.
• Citation: 121 F. 61
• Parties: McDOWELL et al. v. McCORMICK.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F. 61

McDOWELL et al. v. McCORMICK.

No. 868.

United States Court of Appeals, Seventh Circuit.

October 7, 1902

Linton Cox, for plaintiffs in error.

George H. Peaks and John R. Wilson, for defendant in error.

The plaintiffs in error, citizens of the state of Illinois (hereinafter mentioned as plaintiffs), sued the defendant in error, who was sheriff of La Porte county, state of Indiana (hereinafter mentioned as defendant), in the court below, in trespass, to recover damages for machinery and other personal property, of the alleged value of about $10,000, seized and sold by the defendant. The issues were heard by the court on waiver of trial by a jury, resulting in a general finding 'for the defendant,' and judgment accordingly.

The complaint alleges that the plaintiffs were the owners and in possession of the property described on December 2, 1897, and that it was then wrongfully taken and converted by the defendant, under a writ of replevin in his hands, as sheriff issued out of the circuit court of La Porte county November 20, 1897, in a replevin action therein brought by one Nichols, as receiver of the Allen Manufacturing Company, a corporation, against one Schwager and other defendants named the plaintiffs herein not being parties to such action, or named in the writ.

The answer of the defendant consists of a general denial and several additional paragraphs, setting up by way of defense substantially these facts: On and prior to October 11, 1897 the Allen Manufacturing Company, a corporation of Indiana, owned the machinery and other property in suit, located in the State Prison at Michigan City, La Porte county, Ind., operating therewith as a manufacturing plant, and employing convict labor. The Hartford Rubber Works, a contract creditor of the Allen Manufacturing Company, commenced an action against the latter corporation, in the nature of a creditors' bill, as authorized by the statutes of Indiana, on allegations of indebtedness and insolvency of the corporation. Complaint therein was filed in the circuit court for La Porte county October 11, 1897. An injunction and the appointment of a receiver were sought, and the court made a temporary order on the same day restraining disposition of the property pending the hearing of application for further order to be noticed for October 15, 1897. Both summons in the action and notice of such application were personally served on the defendant corporation October 11, 1897. On October 15, 1897, the court heard the application and continued the restraining order, and at the same time entered an order appointing Alonzo S. Nichols receiver of the defendant corporation, as 'an emergency requirement.' The receiver immediately qualified and demanded possession, but Schwager (alleged receiver, hereinafter mentioned) and the other defendants named in the replevin writ interposed after the defendant corporation was so served with process and notice, and prevented both access to the property and possession by the receiver, Nichols. Thereupon the court authorized the receiver to sue such parties for possession, and on November 20, 1897, the receiver filed in the same court the complainant and affidavit for replevin against Schwager and the other parties withholding the property. The summons and writ of replevin were issued and delivered to the defendant sheriff November 23, 1897, and personally served upon each of the defendants therein the same day. The sheriff at the same time demanded

the property, and the defendants in the writ refused to deliver, and prevented the sheriff from access or possession. It is further alleged that Schwager and the other replevin defendants retained possession and concealed the property until December 2, 1897, when they placed it on cars at Michigan City for shipment to the plaintiffs in the present suit; that it was then seized by the defendant sheriff under the replevin writ while in the possession of the replevin defendants; that any claim thereto by the plaintiffs in the present action arises out of a pretended transfer by Schwager to them after the service of the writ on November 23, 1897, and 'with full notice and knowledge of all of the proceedings' above recited, the plaintiff confederating therein with Schwager for the purpose of preventing the sheriff 'from getting possession of said property' under the writ of replevin; that before the defendant sheriff had completed his seizure the plaintiffs herein informed him that they 'rescinded the pretended sale and purchase of said property,' and they immediately served written notice to that effect upon the replevin defendants, and as well upon the defendant sheriff; that, relying upon such notice and representations, the defendant sheriff proceeded in and completed his levy, and subsequently turned the property over to the plaintiff in the writ, 'with the full knowledge of the plaintiffs herein, and without objection on their part,' and 'thereby placed the same beyond his power to return or deliver' to them; and that the plaintiffs are estopped from reclaiming the property or making any demand therefor. Other proceedings are alleged, but they are merely cumulative, if material.

The plaintiffs, for reply to these defenses, allege title through Schwager, as receiver appointed by the La Porte superior court (a court of co-ordinate jurisdiction with the circuit court of La Porte county), on October 14, 1897, in an action brought by Union Drop Forge Company against the Allen Manufacturing Company; allege that the receiver qualified the same day, and entered into possession of the property in suit, and so remained until November 24, 1897; that he then sold the property, under an order of the superior court, to the plaintiffs in this action, who purchased the same at auction in good faith, and for a valuable consideration, 'and without any notice or knowledge whatsoever of the pendency of the' action of the Hartford Rubber Works Company; that the plaintiffs endeavored to rescind the sale, under the advice of Chicago counsel, but rescission was not allowed, and they demanded the property from the defendant. Other matter is stated which has no relevancy to the issue.

The bill of exceptions does not purport to contain all the evidence, but contains all on which error is assigned. It also states that evidence offered by the plaintiffs tends to show that 'said plaintiffs had actual notice and knowledge of the institution and pendency of' the replevin suit, 'and endeavored to move said property out of the state, and thus defeat the execution of said writ by the defendant'; that 'the evidence tended to show that the suit brought in said superior court was instituted in bad faith, for the purpose of defeating the suit previously begun in the La Porte circuit court'; and that the complaint in the superior court suit was filed October 13, 1897.

The errors assigned are for the admission of testimony (over objection and refusal to strike out) offered on the part of the defendant, and the sole reliance for reversal is the admission of the record of proceedings in the prior case commenced in the state circuit court by the Hartford Rubber Works Company against Allen Manufacturing Company.

Before JENKINS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.

SEAMAN ...