Milburn v. Gilman

• Decision Date: 31 October 1847
• Parties: MILBURN v. GILMAN.
• Court: Missouri Supreme Court

11 Mo. 64

MILBURN

v.GILMAN.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

In February, 1846, W. S. Gilman brought his action of trespass de bonis asportatis against William Milburn, in the St. Louis Circuit Court, for taking the hull of a steamboat. Plea, not guilty--verdict and judgment for plaintiff-- appeal by defendant.

The case is this: On the 11th October, 1844, a suit was brought in the St. Louis Circuit Court, in the form of the statute, by Solomon Rogers against the Steamboat Lebanon; the warrant was issued and delivered to sheriff Milburn to be executed, who took the boat, and, after detaining it one day, released it, upon bond being given according to law. While the above named suit was pending in the Circuit Court, in April, 1845, a number of suits were brought before a justice of the peace against the said boat, warrants issued and served by constables, judgments rendered and orders of sale issued. Under these orders, the constable sold the boat to one Clark, for $1,305, who got possession. The boat was run a few trips from St. Louis to Alton. It then got into the hands of one Captain Lamothe; how, or when, not explained in the testimony; and Lamothe sold and delivered it to Gilman, the plaintiff, who was in the act of dismantling the boat and changing it into a barge, when it was seized by the sheriff, under an execution and order of sale, as stated below. On the 6th of February, 1846, in the Circuit Court, judgment was rendered in said suit of Rogers v. Steamboat Lebanon, against said boat and the bondsmen; and an execution and order of sale was immediately issued thereon, and delivered to sheriff Milburn, the defendant, who delivered it to his deputy, Henry B. Belt, to be executed. And the said Belt seized the boat, in the hands of Gilman, the plaintiff, and sold it under said execution to satisfy the judgment of the Circuit Court. Milburn had nothing to do with the transaction further than that, as sheriff, he received the writ and handed it to his deputy to be executed, and, after the sale, received the money from his deputy and paid it over to the plaintiff's attorney. At the time of seizing the boat, Belt was warned not to seize it, and notified of the nature of Gilman's claim.

The testimony being closed, the defendant moved the three following instructions, all of which were refused, and exceptions taken, viz: 1. If the jury believe from the evidence that the suit, the record of which has been given in evidence, and in which suit the execution given in evidence and under which the sheriff took and sold the boat, was instituted in this court, and the warrant served, and so the boat brought within the jurisdiction of this court, before the suits were brought under which the plaintiff claims, the execution in evidence is a full defense, and the jury ought to find for the defendant. 2. If the jury believe from the evidence, that in seizing and selling the boat in question, Milburn acted only as sheriff of the county of St. Louis, and in so acting, did nothing but what was expressly commanded him in the writ of execution, they ought to find for the defendant. 3. If the jury believe from the evidence that the defendant, William Milburn, did not of himself personally take the boat, nor sell the same, and no otherwise commanded the taking and sale thereof than by delivering the writ of execution to Henry B. Belt, his deputy sheriff, to be executed, he is not liable in this action for any of the acts of said Belt not required to be done by said writ.

The court then gave, on its own mere motion, the following instruction, which was excepted to by the defendant, viz: “If the jury believe from the evidence that the steamboat Lebanon was seized by the constable in the case of Henry Powers and others, plaintiffs, read in evidence, and that judgments in these cases were perfected against the said boat, and the said boat ordered to be sold under those judgments, and that under the orders of sale read in evidence, the constable gave notice and made sale of the boat, at public vendue, to the person or persons under whom the plaintiff claims title, and that the plaintiff, at the time of the seizure of the said boat by the defendant, had the said boat in possession, and notified the defendant of his claim of title and of the nature thereof--if these facts appear from the evidence, the plaintiff is entitled to recover against the defendant in this action.

GAMBLE & BATES, for Appellant.

1. The steamboat Lebanon was bound by the seizure under the warrant, against S. Rogers; and the bonding her out of the custody of the sheriff did not discharge the lien or the debt. Rev. Code, of 1835, p. 103, §§ 5, 10; act 1839, p. 13, § 2. The act of 1845 provides for the first time for giving a bond that may discharge the lien, and provides for such discharge. See p. 99, § 9. Section 10 preserves the old bond, with its old effects; not discharging the lien. 2. Unless the bringing of the suits before the justice of the peace ousted the Circuit Court of its jurisdiction (to suppose which would be absurd), that court was bound to hear and determine Rogers' suit against the boat; and having determined it in favor of Rogers, the law allowed the court no discretion as to the mode of execution, but in terms, requires an order of sale to be awarded. Rev. Code, 1835, p. 103, § 10. In Evans v. King, 7 Mo. R. 413, this court determines that the bonding of attached property does not discharge the lien. 3. The court having jurisdiction of the case, and having issued the order of sale, the sheriff had no discretion, but was bound to obey it. 1 Mo. R. 134, Brown v. Henderson; 4 Mo. R. 1, 3, Burton v. Sweaney; 4 Mo. R. 37-8, Mitchell v. Gregg. And to the same purpose, in 8 Am. Com. Law, 48-9, with abstract of cases from 9 Conn. R. 141. This case in Conn. R. is full to the point, and very strong. 1 Ala R. 49; 12 Wend. R. 96. If a fieri facias come to the sheriff, he must execute it, though the plaintiff or defendant die after the writ comes to his hands. 2 Ld. Raym. 1072. 4. The sheriff being but a minister, and bound to obey the writ, he cannot be made responsible in any form for that obedience. 5. But if responsible at all, it is well settled that trespass will not lie against him for such cause. 9 Mo. R. 151, Ivy v. Barnhartt, and the above cited case, Watson v. Watson, 9 Conn. R. 141, is full to the same point.

FIELD & CARROLL, for Appellee.

1. The plaintiff below acquired, through the purchase at the constable's sale, a title to the boat, discharged of all liens prior in date to that sale. Pamph. acts 1841, p. 18; Steamboat Raritan v. Smith, 10 Mo. R.

2. The seizure of the boat by the sheriff was a trespass. 1st. The record and proceedings against the boat under which the sheriff attempted to justify (the same proceedings having been commenced prior to the constable's sale), were, in effect, between other parties, and were not admissible as a justification against the plaintiff below. 3 Cowen's Notes, Phil. Ev. 880. 2nd. By the sale by the constable, the jurisdiction of the Circuit Court in the suit in rem. was divested, and the condemnation of the boat and order of sale were void. 1 Kent's Com. 359; Hudson v. Guntin, 4 Cranch, 293; 3 Cowen's Notes, Phil. Ev. 886. 3rd. If the order of sale was not void, it was irregular or erroneous, and as the plaintiff below was a stranger to the proceedings, and could not bring error, he might falsify by evidence. See Griswold v. Stewart, 4 Cowen, 457, and cases cited. 4th. If the proceedings and judgment were regular, still the order of sale was irregular and illegal and furnished no justification for the seizure. 5th. If the judgment and order of sale were regarded as regular, still, the boat, under the law, in the hands of the plaintiff below, was, by reason of the constable's sale, exempt from the operation of the order of sale. The case may be likened to an execution satisfied or released, or more nearly, perhaps, to the case of property exempt from execution by law; in which cases, the parties proceeding under the process, are trespassers. It is no answer for the sheriff to say, that he was justified by the letter of his process, for he had notice of the facts which rendered the process invalid as against the boat in the hands of the plaintiff below. Kuhn v. North, 10 Serg. & Rawle, 399; Sherman v. Boyce, 15 Johns. 443; King v. Goodwin, 16 Mass. R. 63; Trowbridge v. Cushman, 24 Pick. 310; Fairfield v. Baldwin, 12 Pick. 388; 3 Cowen's Notes, Phil. Ev. 990, 1008.

3. The proceedings under which the sheriff justified, were entitled to no priority from the circumstance of being first instituted. 1st. The lien of the process was gone by the giving of the bond. In this respect, the case differs from an attachment; for the bond is conditioned to pay the debt and costs, and on giving the bond, the boat is to be discharged. 2nd. Besides, the forfeiture of the bond and taking judgment against the sureties, is holden in attachment cases to discharge the lien of the process. Lusk v. Ramsey, 3 Munf. Va. R. 417; Malone v. Abbott, 3 Humph. Tenn. R. 332; 2 Tuck. Com. 365, 366. It may be added, that a construction continuing the lien of process against the boat after it had been discharged under bond, would open a door to fraud, particularly as to such persons as become creditors after the boat was discharged. In fact, the demands under which the boat was seized and sold by the constable, in this case, accrued while the boat was running, after she was discharged under bond.

SCOTT, J.

To the objection that Milburn, not having put in a plea of justification, cannot avail himself of the matters now sought to be used as a defense for him, it may be answered, that by statute, under the general issue, an officer who is sued for an act done by virtue of his office, may give the special matter in evidence. Whether the giving of a bond under the statute for the release of the...