Metzner v. Graham

• Decision Date: 31 October 1877
• Citation: 66 Mo. 653
• Parties: METZNER, Plaintiff in Error v. GRAHAM
• Court: Missouri Supreme Court

66 Mo. 653

METZNER, Plaintiff in Error

v.GRAHAM

Supreme Court of Missouri.

October Term, 1877.

Error to Linn Court of Common Pleas.--HON. THOMAS WHITAKER, Judge.

C. H. Mansur for plaintiff in error.

1. The defendant cannot avail himself in this cause of the defense that the mortgage given to Ewing was a valid one constituting a prior lien on the attached property; if he can, the mortgage and judgment of foreclosure cannot so inure to his benefit as to bring him within the line of decisions cited by his counsel, making him liable only for nominal damages. He was no party to the mortgage, has violated his duty, deprived plaintiff of his rights, and has caused a direct and positive loss. Metzner v. Graham, 57 Mo. 410, 411; Sedgwick on Dam., (5th Ed.,) p. 590

H. M. Pollard for defendant in error

In an action against an officer for neglect of duty, the measure of damage is the actual damage sustained by plaintiff by such breach, and, where plaintiff is not actually damaged, no more than nominal damages can be received. (1 Wag. Stat., § 64, p. 614.) Sedgwick on Dam., (5th Ed.,) pp. 27, 28, 43, §§ 49, 50, 53, 585-6-7-8, 593-4; Gwyne on Sheriffs, 573; 12 Met. 535; 2 Met. 490; 7 B. Mon. 298; 14 Ohio St. 187; 15 Ohio St. 523; Berry v. Burckhartt, 1 Mo. 418; Miller v. Brown, 3 Mo. 127; Hickman v. Griffin, 6 Mo. 37; Davis v. Wood, 7 Mo. 162; Higdon v. Conway, 12 Mo. 295; State v. Ferguson, 13 Mo. 166; Mortland v. Smith, 32 Mo. 225; Bennett v. Vinyard, 34 Mo. 216; Howard v. Clark, 43 Mo. 344; State v. Powell, 44 Mo. 436; Pike v. Megoun, 44 Mo. 498; State v. Miller, 48 Mo. 251; Mayor v. Opel, 49 Mo. 190; Herman on Executions, p. 625, § 408; State v. Langdon, 57 Mo. 350.

SHERWOOD, C. J.

Plaintiff's petition states that defendant was sheriff of Livingston county when the execution hereinafter described was issued; that in an action at law in the common pleas court of Livingston county, on April 22nd, 1871, wherein Herman Metzner was plaintiff, and one A. N. Smith was defendant, plaintiff recovered a judgment for $1,127.33 and interest at 8 per cent. thereon and costs, and that in aid of said judgment, certain personal property, described in said petition, attached in said suit, and in the possession of defendant as the sheriff of said county, was ordered to be sold and the proceeds thereof applied in special payment of said judgment; and averring that said property was seized and levied upon on the 3rd day of January, 1871, by said sheriff, and was worth $2,000, and was ample to pay said judgment; that afterward, on June 3d, 1871, an execution on said judgment was put in defendant's hands as sheriff, and on the day it was issued; commanding him to sell the attached property as the property of said A. N. Smith, and commanding the proceeds thereof be applied in payment of said execution, and commanding that he should cause to be made the debt and damages and costs; and that he have the same before the court at the next term, being July 17th, 1871, to satisfy the same; that said July term has come and gone, and the defendant in violation of his duty has neglected and refused to make sale of said attached property, or to return said execution according to law and its command, and that he has become liable to plaintiff in the whole amount of money specified in said execution and for which he asks judgment.

Defendant, Graham, in his answer admits he was sheriff as stated; that judgment was rendered in the common pleas court, and the specific personal property set forth by plaintiff in his petition was ordered to be sold to pay said judgment and costs: “admits, he as the sheriff, had seized and held the same under and by virtue of a writ of attachment issued out of said court, that an execution issued on said judgment in favor of plaintiff and against Artemas N. Smith, of date June 3rd, 1871, directed to defendant Graham, as sheriff of Livingston county, and delivered to him the same day,” by which he was commanded to sell said attached property as the property of said Smith, and to return said execution and proceeds to the common pleas court on June 17th, 1871, to satisfy said judgment and costs; that June 17th, 1871, has come and gone, and he has not sold said property as commanded; denies that he has not returned said writ of execution according to law; and denies he has become liable to plaintiff for the amount of said execution or any part of it. Defendant further alleges that a judgment was rendered in the circuit court of Livingston county, on February 16th, 1871, in favor of John A. Ewing and against said A. N. Smith, foreclosing a mortgage upon the aforesaid attached property for $1,700 and costs; that an execution issued on said judgment on February 22nd, 1871, directed and delivered (same day) to said sheriff, (this defendant) commanding the sale of said personal property, and that defendant have the proceeds before the judge of the circuit court, on the 4th Monday in July, 1871, to satisfy said debt and costs of said Ewing; that at the time of its delivery, defendant held said property in his possession under and by virtue of the writ of attachment mentioned in plaintiff's petition; that on March 7th, 1871, under the Ewing execution he sold all the aforesaid attached personal property at public sale, for $1,394.83, and paid off said Ewing execution as follows: To Ewing $1,200, costs $100.23, and said A. N. Smith as the head of a family claimed the remainder, $94.58, as exempt, and the same was paid to him; denies the property was worth $2,000; but admits it was worth $1,394.58. Defendant alleges the mortgage from A. N. Smith to plaintiff was dated October 15th, 1870, and was filed for record in the proper office on the same day; that C. H. Mansur was attorney of plaintiff in said attachment suit of Herman Metzner, and had personal knowledge of the suit to foreclose the mortgage. Defendant alleges that at the July term 1871, of the common pleas court, he returned this plaintiff's execution setting forth the reasons why he had not sold under it as above stated, &c., &c., and alleges all the foregoing as an answer to plaintiff's petition.

Plaintiff for his reply, admits the suit upon the mortgage and judgment thereon in the circuit court of Livingston county, in favor of Ewing and against Smith: but avers that said suit was instituted on January 4th, 1871, and after the suit was commenced and the levy by attachment made, by defendant as sheriff in the suit wherein Metzner was plaintiff and Smith was defendant; admits an execution was issued on said judgment in favor of Ewing, and delivered to Graham, as sheriff, and that he as sheriff, sold said goods, in a manner and form, and for the sum stated in the answer, and applied the proceeds in payment of the execution in favor of Ewing; but plaintiff denies that said judgment, execution and sale thereunder, was, or is, a defense either in law or equity to the cause of action stated by plaintiff in his petition, and denies that the return made by Graham, as sheriff, to said execution, was, or is any defense, either in law or equity to plaintiff's cause of action. Plaintiff for farther reply, says that the court of Common Pleas in and for Livingston county, was a court of record and had original jurisdiction with the circuit court, in all actions both at law and equity, and that no process issued in another suit in the circuit court to which plaintiff Metzner was not a party and had no notice, or day in court, could authorize or protect defendant in the seizure and sale of goods already in his possession and held by him by virtue of a writ of attachment issued out of the...