McLaughlin v. Alexander
| Decision Date | 25 June 1891 |
| Parties | WILLIAM L. McLAUGHLIN, Respondent, v. ALEXANDER et al. Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lawrence County, SD
Affirmed
Martin & Mason
Attorneys for appellants.
McLaughlin & McLaughlin
Attorneys for respondent.
Opinion filed June 25, 1891
This is an action brought by the plaintiff against the defendants to recover upon an undertaking given on appeal from a judgment wherein George J. Germain was plaintiff, and Lucius Manwell was defendant, executed by the defendants herein to said George J. Germain. In the fourth paragraph of the complaint the plaintiff alleges that before the commencement of the action the said Germain duly assigned to him the judgment and undertaking described in the complaint, and that the said plaintiff was at the time the action was instituted the owner and holder thereof. The defendants in their answer deny each and all the allegations contained in Paragraph 4 of plaintiff's complaint, and. "for a further defense, defendants allege that the defendant William E. Jones is now and has been since prior to the 25th day of April, 1889, the owner of the judgment set up in Paragraphs one and three of plaintiff's complaint herein, said judgment having been assigned to said defendant prior to the assignment under which plaintiff herein claims said judgment; plaintiff having, as defendants are informed and believe, full notice of said assignment at the time he attempted to acquire the rights in said judgment and undertaking set up in his complaint herein." The defendants then proceed to set out the manner in which said Jones became the assignee of said Germain judgment, about April, 1889, which may be briefly stated as follows: That said Jones recovered a judgment in the district court of Lawrence county against said George J. Germain; that on or about April 18, 1889, an execution was issued thereon, and that the sheriff, under and by virtue thereof, levied upon said Germain judgment, and that said sheriff served a copy of said execution, with the following notice, upon the attorney of record of Lucius Manwell, defendant in the said Germain judgment, who is a resident of the State of Iowa, upon the attorney of said Germain, and upon the justice of the peace who rendered the judgment: "Take notice that, under and by virtue of an execution to me directed, and now in my possession, issued in this action, a certified copy of which is herewith served upon you, and left with you, I have levied upon, and do hereby levy upon, the following described property belonging to George J. Germain, to wit: A certain judgment rendered in favor of George J. Germain and against Lucius Maxwell by O. W. Jewett, J. P., on August 31st, 1885. and affirmed by dismissal in the district court; and I hereby demand that you furnish me with a written statement, under your hand, of said judgment, and the debt represented thereby." And the answer concludes as follows: "That the said copies of execution and notice were served upon the above named parties on or about the 19th day of April, 1889, and prior to the 25th day of April, 1889, on which last named day the assignment of said judgment to William L. McLaughlin, the plaintiff herein, was filed with the clerk of the district court of Lawrence county, Dak.; that on the 25th day of April, 1889, immediately after the filing by said William L. McLaughlin of the assignment of said judgment to himself, which said assignment was dated and acknowledged on April 24, 1889, the said sheriff served upon the said plaintiff, William L. McLaughlin, a certified copy of said execution, with notice thereon attached, in substance the same as the one above set forth, excepting that the name of the judgment debtor in the notice hereto attached was properly given as Lucius Manwell, instead of Lucius Maxwell, as debtor, given in the notice served prior to April 25th upon said Polk, McMahon, and Jewett, as aforesaid, upon information and belief, that the plaintiff, William L. McLaughlin, well knew, at the time of the execution, delivery and filing of the assignment to him of the said judgment in favor of George J. Germain, that execution had been sought to be levied thereon, and that the notices and certified copies of execution, as above set forth, had been served upon the above named parties; that this defendant William E. Jones will receive the said judgment in favor of George J. Germain at its par value as cash, and that the said sheriff has duly assigned the said judgment in favor of said George J. Germain to this defendant William E. Jones." To this answer the plaintiff interposed a demurrer, on the ground that the answer did not state facts sufficient to constitute a defense or counterclaim to the complaint. The court sustained the demurrer, and, the defendants electing to stand on their answer, judgment was thereupon rendered in favor of the plaintiff, and the defendants have appealed to this court.
The errors assigned are as follows: (1) The court erred in deciding that the levy of the defendant Jones upon the judgment and undertaking set out in plaintiff's complaint was in-valid and of no effect. (2) The court erred in deciding that the defendant Jones is not the owner of the judgment and undertaking set out in complaint of the plaintiff. (3) The court erred in deciding that the plaintiff is the owner of the judgment and undertaking set out in the complaint of the plaintiff. (4) The court erred in sustaining the demurrer of the plaintiff to the defendants' answer herein.
The errors may be considered under the following heads: (1) Can a judgment in this state be levied on and sold like other personal property capable of seizure and manual delivery?
(2) Was the levy alleged to have been made on the Germain judgment sufficient to authorize the defendant Jones to hold it, as against the assignment by Germain to the plaintiff? (3) Assuming that the judgment could have been levied on and sold, was there such a misdescription of the judgment as to render the levy and sale invalid, as against the assignment to the plaintiff? And (4) did the court err in rendering judgment for plaintiff, after overruling the demurrer, and assuming that the admissions in the second defense in the answer relieved the plaintiff from proving the fact of assignment alleged in the fourth paragraph of his complaint, denied by the first defense in the answer.
1. Can a judgment be levied on and sold under an execution in this state? Under the provisions of our statute, e are of the opinion that a judgment is subject to levy and sale under an execution in this state. Section 5118, Comp. Laws, provides that Subdivision 3, § 4760, defines "personal property" as follows: "The words "personal property include money, goods, chattels, things in action, and evidences of debt." This definition clearly includes judgments, as they are evidences of debt, and are recognized as property by all courts. This view is also sustained by Sections 5122 and 5123, which are as follows: "Judgments, bank bills, and other things in action may be sold or appropriated, as provided in the next following section, and assignment thereof by the officer shall have the same effect as if made by the defendant." Money levied may be appropriated without being advertised or sold. The same may be done with bank bills, drafts, promissory notes, or other papers of the like character, if the plaintiff will receive them at their par value as cash, or if the officer can exchange them for cash at that value. It will be observed that in Section 5122 judgments are specifically named in connection with bank bills and things in action. Section 5118 is exceedingly broad and comprehensive in its provisions, and seems intended to include all kinds of personal property, and was no doubt intended by our legislature to include judgments, debts, and things in action of every description within the definition of personal or real property, as subject to levy and sale on execution. Van Cise v. Bank, (Dak.) 33 NW 897.
2. Were the proceedings taken by the sheriff under the execution in favor of defendant Jones such as to constitute a valid levy on the Germain judgment, as against the assignment of said judgment to the plaintiff? It will be noticed that the sheriff served a copy of his execution with the usual notice upon the attorney of Lucius Manwell, defendant in the Germain judgment, and who was a non-resident of the state, upon the attorney of Germain, and upon the justice of the peace who rendered the Germain judgment. Such a service did not in our opinion, constitute a valid levy on the judgement. There are only two methods known to the law by which an execution can be levied upon personal property. One is by the taking of actual possession of personal property capable of manual delivery by the sheriff. Powell v. McKechnie, 3 Dak. 319, 19 NW 410. And the other is by performing such acts in making the levy upon intangible personal property, or property incapable of manual delivery, as may be required by statute in order to make a constructive levy. Judgments were not subject to levy and sale on execution at common law. 7 Amer. & Eng. Enc. Law, 129; Osborn v. Cloud, 23 Iowa, 104; Latham v. Blake, (Cal.) 18 Pac. Rep. 150. Hence there is no common law method for making such levy. Judgments, therefore, being incapable of manual delivery, can...
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