Nighbert v. Hornsby

• Decision Date: 10 November 1897
• Parties: NIGHBERT v. HORNSBY, Deputy Sheriff.
• Court: Tennessee Supreme Court

42 S.W. 1060

100 Tenn. 82

NIGHBERT v. HORNSBY, Deputy Sheriff.

Supreme Court of Tennessee.

November 10, 1897

Appeal from circuit court, Roane county; W. R. Hicks, Judge.

Replevin by William Nighbert against S. B. Hornsby, deputy sheriff. Judgment for defendant, and plaintiff appeals in error. Modified.

Young & Young, for appellant.

Welcker & McNutt, for appellee.

CALDWELL J.

Hornsby as deputy sheriff, was about to sell, under execution, a certain lot of corn belonging to Nighbert, when Nighbert brought this action of replevin, to regain possession and prevent the sale. Verdict and judgment were for the defendant, and plaintiff appealed in error.

1. The charge of the court below is not in the record; hence this court will presume that the jury was correctly instructed upon ail questions of law arising upon the proof in the case and need not consider any of the legal propositions urged in the brief of plaintiff's counsel. Railroad v House, 96 Tenn. 552, 35 S.W. 561; Railway Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, and 14 S.W. 428; Insurance Co. v. Sturges, 12 Heisk. 339; Lane v. Keith, 2 Baxt. 189.

2. The principal and controlling controversy of fact at the trial was whether or not the defendant had made a levy on the corn involved. The verdict of the jury is conclusive upon this question if there is any evidence to sustain it, and, in determining whether or not there is such evidence, the strongest legitimate view of the testimony against the plaintiff is by this court taken as true. Railroad v. House, 96 Tenn. 552, 35 S.W. 561; Transit Co. v. Seigrist, 96 Tenn. 120, 33 S.W. 920; Kirkpatrick v. Jenkins, 96 Tenn. 85, 33 S.W. 819, and cases cited. The substance of the most cogent evidence against the plaintiff is: (1) The indorsement of a levy in due form upon the back of the execution. (2) The statement of a witness who was present that the defendant, having the execution, said to the plaintiff, who pointed out the property, that he would make the levy, and, if indemnified, would advertise and sell; that, having said this, he asked the plaintiff if he would be responsible for the property until the day of sale, and received the reply that "it would be there"; and that the defendant "noted down on an envelope [the] property he levied on," and went away, without "removing the corn or nailing it up." And (3) that defendant soon indorsed the levy on the execution, and notified the plaintiff that he had received an indemnity bond, and would advertise and sell the property. These facts are ample to support the verdict, notwithstanding a greater volume of testimony in plaintiff's favor. Undoubtedly, they tend to establish the fact that the defendant actually made a valid levy. More is not needed to sustain the verdict in this court

3. It was not indispensable in law that the officer should take manual possession of the property, or that he should at the moment of the levy indorse his action upon the execution. It was sufficient if, as indicated by the evidence mentioned, he went into the presence of the property in question with the power and purpose then and there to seize it under a valid execution, and, by virtue of the writ, really assumed control of the property, as upon a manual seizure, with the plaintiff's knowledge, and, having done that, then left the property in the plaintiff's custody by his consent, and with his promise to keep it safely until demanded for sale; first noting the fact of the levy upon another paper, and subsequently, in due season, making proper indorsement on the execution itself. Tidd, Prac. 1013; Caruth. Law Suit, § 447, p. 297; Etheridge v. Edwards, 1 Swan, 426; Evans v. Higdon, 1 Baxt. 245; Bradley v. Kesee, 5 Cold. 223; Brown v. Allen, 3 Head, 429; Tyler v. Dunton, 1 Tenn. Ch. 367, 368; Freem. Ex'ns, § 260.

4. Though the statute authorizes a delivery bond when the property is left by the levying officer in the possession of the execution debtor (Code, § 3044; Mill. & V. Code, § 3757; Shannon's Code, § 4772), and it is always safer and better for the officer to take such a bond, his failure to do so does not affect the validity of the levy (Brown v. Allen, 3 Head, 429). The statute is directory and remedial merely.

5. The jury returned a verdict in favor of the defendant, and fixed the value of the corn replevied at $52.50. Upon that verdict the court pronounced judgment in favor of the defendant, and against the plaintiff and the sureties on his replevin bond for $250, the penalty of the bond, to be satisfied by a return of the corn or the payment of $52.50, its...