Murray v. Meade

• Decision Date: 07 February 1893
• Citation: 5 Wash. 693,32 P. 780
• Parties: MURRAY v. MEADE, SHERIFF.
• Court: Washington Supreme Court

32 P. 780

5 Wash. 693

MURRAY v. MEADE, SHERIFF.

Supreme Court of Washington

February 7, 1893

Appeal from superior court, Kittitas county; Carroll B. Graves Judge.

Action by David Murray against A. A. Meade, sheriff, for false return of an execution unsatisfied. From a judgment for defendant, plaintiff appeals. Reversed.

Pruyn & Ready, for appellant.

H. J Snively, for respondent.

STILES J.

One Louden, having commenced an action in the superior court of Kittitas county against Randall and Carruthers, partners caused an attachment to be issued and levied upon certain personal property. Thereafter the plaintiff in this action with another, executed and delivered to the sheriff a forthcoming bond, and the property was returned to the judgment debtors. After obtaining his judgment, Louden issued an execution, which was delivered to the sheriff, who was defendant in this action, and the sheriff levied upon property of the judgment defendants sufficient to pay the amount named in the execution. While the property levied upon was in the hands of defendant under the execution, the plaintiff paid into the hands of Louden the sum of $437.47, which was the full amount of the judgment and costs, then a lien upon the property in the hands of the sheriff. The plaintiff took from Louden a document reading as follows: "Louden against Randall and Carruthers. To A. A. Meade: Please be directed and governed in all matters pertaining to the judgment and execution issued in this case by the direction of David Murray, and no one else." This paper plaintiff delivered into the hands of the sheriff, together with one signed by himself as follows: "Louden against Randall et al. To Sheriff A. A. Meade: You will proceed to sell the property levied upon under the execution issued out in this cause, and satisfy the judgment out of the property levied upon." The attorney for plaintiff, at the time that he delivered said notices to the sheriff, informed him of the transaction between Murray and Louden, and further directed the sheriff to proceed and sell the property levied upon, and satisfy the execution. Subsequently the sheriff, under the direction of the attorney for Louden in the original case, released the levy, and returned the execution into court unsatisfied. This action was brought against the sheriff for damages upon a false return, and the court below, after hearing the plaintiff's testimony, entered a nonsuit. The complaint contained the following allegation: "(5) the 27th day of April, 1891, plaintiff, as surety, paid the execution creditor, Louden, the full amount of the judgment, and at once gave defendant sheriff immediate notice of that fact, which was also done by Louden, and defendant was required to proceed in all things further in the interest of this plaintiff, to retain the goods and expose them for sale." In the statement of facts we find the following, certified to by the court below as the proof introduced to sustain the foregoing allegation in the complaint: "On the 24th day of April, 1891, the above-named plaintiff in this case, to wit, David Murray, as surety on said bond to release said writ of attachment so levied upon the goods and chattels of the said J. B. Randall, as aforesaid, paid said George W. Louden, the plaintiff in said execution, the sum of four hundred and thirty-seven & 45-100 dollars, said sum being the full amount of said judgment and costs rendered in said action, in consideration that the said George W. Louden, the plaintiff in said execution, would surrender to the said David Murray control over the judgment and execution in said cause of Louden against Randall & Carruthers, partners as the Ellensburgh Trading Company; that, in consideration of the payment of the said sum of four hundred and thirty-seven & 45-100 dollars by the said plaintiff in this action, the said George W. Louden did surrender to the said David Murray control over said judgment and execution, and George W. Louden signed the following notice," etc. There was, perhaps, a variation between this proof and the allegation of the complaint of the payment of the judgment, but it would appear that the evidence showing the facts to be as they are stated in the statement of facts was admitted without objection, and, therefore, upon a motion for a nonsuit, the court ought to have considered the...