Munns v. Loveland

• Decision Date: 04 June 1897
• Docket Number: 783
• Citation: 15 Utah 250,49 P. 743
• Court: Utah Supreme Court
• Parties: ARTHUR J. MUNNS AND ELIAS JENSEN, APPELLANTS, v. LOVELAND ET AL., RESPONDENTS

49 P. 743

15 Utah 250

ARTHUR J. MUNNS AND ELIAS JENSEN, APPELLANTS, v. LOVELAND ET AL., RESPONDENTS

No. 783

Supreme Court of Utah

June 4, 1897

Appeal from the Second district court, Weber county. Hon. H. H Rolapp, Judge.

Action by Arthur J. Munns and Elias Jensen against C. C. Loveland H. E. Gibson, and C. A. Smurthwaite (partners as Gibson &amp Smurthwaite), L. E. Hall, Zion's Co-operative Mercantile Institution, Brigham City Woolen-Mills Company, George Q Cannon & Sons Company, Brigham City Mercantile & Manufacturing Association, and Gilbert F. Boreman. From a judgment for defendants, plaintiffs appeal.

All of the respondents except C. C. Loveland, who was sheriff of Box Elder county, Utah, on or about the 1st day of May, 1893, instituted separate suits in justices' and commissioners' courts in said county against one E. A. Box, to recover various claims, and at the same time instituted attachment proceedings, in which writs were issued and placed in the hands of Loveland, as sheriff, who, it appears, under and by virtue of the writs levied upon the stock of merchandise in question, as the property of said Box, and took the goods into his possession, upon dates between the 1st and 5th of May, 1893. After Sheriff Loveland had levied upon and taken into his possession the goods, under the various writs of attachment, said Box and his wife executed a deed of assignment for the benefit of his creditors to the plaintiffs (the appellants herein), as assignees, and thereby attempted to convey the merchandise in controversy, and some real property. The assignees then demanded the possession of the goods, which was refused by the sheriff. After such refusal, on the 20th day of May, 1893, they were sold by the sheriff under writs of attachment issued in the attachment suits; and on the same day the assignees brought this action to recover the possession of the goods, or, if that could not be obtained, their value. They alleged in their complaint generally, in addition to the formal matters, that they were the owners and entitled to the possession of the goods and chattels in controversy, and that upon demand made the defendants refused to surrender the same, and still wrongfully detain and withhold them from the possession of the plaintiffs. All the defendants except George Q. Cannon & Sons Company filed answers in which they specifically denied the allegations of the complaint, and in justification set up the attachment proceedings. At the trial of this cause, upon the plaintiffs resting, a nonsuit was granted as to all the defendants except C. C. Loveland, the sheriff; and at the close of the testimony of defendant Loveland the court directed the jury to find a verdict of no cause of action as to him, and entered judgment accordingly. Thereupon this appeal was prosecuted.

Affirmed.

R. H. Jones, for appellant.

Suppose at this time Box had been insolvent; suppose also that this transfer had been voluntary; and further, that the delivery of the bill of sale had not been accompanied by a delivery of the goods sold or followed by a continued change of possession; the transaction would still be valid as between him and his wife and against all the world, except creditors. Thornburg v. Hand, 7 Cal. 554; Page v. O'Neil, 12 Cal. 483; Bickerstaff v. Doud, 19 Cal. 118; Knox v. Marshal, 19 Cal. 623; McMinn v. Whelan, 27 Cal. 316; Sexey v. Adkinson, 34 Cal. 350; Grum v. Barney, 55 Cal. 256; Kane v. Desmond, 63 Cal. 465; Palmer v. McMaster, 19 P. 585; Weatherly v. Straus, 93 Cal. 286.

"Fraud must be alleged whenever it constitutes an element of a cause of action or a defense which is of an affirmative nature and invoked as confirming a right as against the opposite party." Weatherly v. Straus, 93 Cal. 283; Rasmussen v. McKnight, 3 Utah 324; Voorhees v. Fisher, 9 Utah 306; Presumptions with Roxey Box; Hussey v. Castle, 41 Cal. 239.

"Whatever the officer is, by his process, commanded to do, is understood to be directed by the party himself, who causes the writ to be issued and delivered to the officer that the exigency thereof may be complied with. Therefore, to the extent of the command the party is responsible for what the officer shall do." Cooley on Torts, 1st ed., p. 129, n. 1; Cooley on Torts, p. 130. n. 1, citing ten cases; Foster v. Wiley, 15 Am. Rep. 185; Vanderbilt v. Kichmond Turnpike Company, 22 Coms't 479. There was no summons issued in this case. An attachment without summons is void. Sec. 3304, p. 266, vol. 2 of the Code; Sec. 3572, p. 308, vol. 2 of the Code; Lowe v. Henry, 9 Cal. 538. The affidavit does not state whether the amount claimed was due upon "an express or implied contract." It is void. Sub. 1 Sec. 3309, p. 267, vol. 2 of the Code; Brichman v. Ross, 67 Cal. 603, 4th par.; Norcross v. Nunan, 61 Cal. 542, par. 1.

Boreman & Boreman, Johnson, Heywood, Jenson and Johnson, for respondents.

A deed cannot bind a party signing it, unless it contains words expressive of an intention to be bound; nor can it operate as a conveyance of property unless it contains words of grant or conveyance upon the part of the one signing it; it must show a participation in the granting part of the deed. McFarland v. Febiger's Heirs, 7 Ohio 195; Purcell v. Goshorn, 17 Ohio 105; Bruce v. Wood, (Mass.) 1 Mett. 542; Catlin v. Ware, 9 Mass. 218; Lufkin v. Curtis, 13 Mass. 223; Leavitt v. Lamprey, (Mass.) 13 Pick. 382; Stevens v. Owen, 25 Me. 94; Lothrop v. Foster, 51 Me. 367; Powell v. Monson, etc., 3 Mason C. C. 347; (19 Fed. Cas. p. 1218. Case No. 11356.)

The grounds of the motion for non-suit were sufficiently stated. Geary v. Simmons, 39 Cal. 224; Vanderford v. Foster, 65 Cal. 49; Gilman v. Bootz; 63 Cal. 120; Carter v. Hopkins, (Cal.) 21 Pac. R. 549; Daley v. Russ, (Cal.) 24 Pac. R. 867; Hayne, New Tr. & App., sec. 116 (last part).

Upon the point that a sale of personal property, to be valid as against creditors, must be accompanied by delivery and an actual and continued change of possession, we beg to cite the following cases: Harkness v. Smith, 28 Pac. R. 423; Bell v. McClellan, 67 Cal. 283; Comly v. Fisher, (U.S.) Taney's Dec. 121; (6 Fed. Cas. p. 207, Case No. 3053;) Woods v. Bugbey, 29 Cal. 466; Bacon v. Scannell, 9 Cal. 272; Ewing v. Merkley, 3 Utah 411; Engles v. Marshall, 19 Cal. 320; Hodgkins v. Hook, 25 Cal. 581; Ray v. Reynolds, 9 P. 15.

In a case where the property seized was in the possession of the debtor or his agent (and more especially where it is really the debtor's property) the writ of attachment is in itself a sufficient justification. Snell v. Crowe, 3 Utah 32; Hamner v. Ballantyne, (Utah) 44 Pac. R. 704; Thornburgh v. Hand, (both opinions) 7 Cal. 554; Brichman v. Ross, 67 Cal. 601; Bickerstaff v. Doub, supra, 19 Cal. 109; Sexey v. Adkinson, 34 Cal. 346; Drake on Attachment, sec. 185a; Freeman on Executions, sec. 101.

It is only where the property was seized when in the possession of a third party that all proceedings under attachment, or the judgment on which the execution was issued, must be shown. Hamner v. Ballantyne, supra; Thornburgh v. Hand, supra; Horn v. Corvarubias, 51 Cal. 524; Babe v. Coyne, 53 Cal. 261; Norcross v. Nunan, 61 Cal. 640.

Nor is the officer bound to enquire whether the writ was properly issued. Drake on Attachments, Sec. 185; Freeman on Executions, secs. 101, 102; Barr v. Combs, 45 Pac. R. 776.

BARTCH, J., delivered the opinion of the court. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.

The first question presented in this case is whether the court erred in granting the non-suit as to all the defendants except C. C. Loveland at the close of the plaintiffs' testimony. The appellants contend that these defendants were joint wrongdoers with the sheriff, because, as is insisted they directed the officer to levy on the goods, and accepted the proceeds of the sale in satisfaction of their demands against E. A. Box. This contention is not sustained by the record. The matters set up in the answer in justification simply show that the officer was authorized in the attachment suits to levy on and sell the property of E. A. Box, but show no direction to him to levy upon or sell the property of these plaintiffs, or of any other person. There is nothing in the answer which would establish the fact that they were joint wrongdoers, even if it were true that the officer was a wrongdoer. Nor did the plaintiffs, before resting their case, introduce any evidence which even tended to show that the officer was authorized or directed by his co-defendants, or either of them, to levy on the particular goods in question, or on any goods except such as belonged to E. A. Box, or that either of such defendants knew, or had reason to know, that the goods levied upon belonged to any other person than E. A. Box, or that they, or either of them, assumed to direct or control the officer in making the levy. Their receiving the proceeds of the sale in satisfaction of their claims, of itself, implied no consent to any irregularities or proceedings of the officer. The attaching creditors were not liable for the acts of the sheriff unless by interference in some way they made themselves liable, and it was incumbent upon the plaintiffs to establish such liability by a preponderance of the evidence, because the defendants are presumed to have intended that no action should be taken by the officer not authorized by the terms of the writs. Speaking of the liability of defendants, in an action for trespass, who had given an indemnity bond in attachment proceedings to an officer who served the writ, the supreme court of the United States, in Lovejoy v. Murray, 70 U.S. 1, 3 Wall. 1, 18 L.Ed. 129 (Mr. Justice Miller delivering the opinion), says, "That the attaching creditor is not answerable for the acts of the...