Oeters v. Aehle

• Decision Date: 31 January 1861
• Citation: 31 Mo. 380
• Parties: OETERS, Plaintiff in Error, v. AEHLE et al., Defendants in Error.
• Court: Missouri Supreme Court

31 Mo. 380

OETERS, Plaintiff in Error,

v.AEHLE et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1861.

1. The object of the statute (R. C. 1855, p. 248, § 32,) in giving to the court the power to order the sale of perishable property, is to confide a power to be used for the benefit of both parties and the sheriff to whom the order is issued is not under the control of either party, and they cannot order such sale to be stopped. If the officer neglects to sell at the time ordered, he does it at his own peril.

2. The doctrine concerning the effect of a plaintiff holding up an execution or stopping proceedings under it after levy, as regards other creditors, does not apply to proceedings under that section of the attachment act.

Error to Cooper Circuit Court.

The plaintiff on the 18th June, 1859, sued out of the Cooper circuit court a writ of attachment, against the property of John Weber. The writ was delivered to the defendant, Bunce, sheriff, on the day that it issued, with directions to levy forthwith. On the 26th of April, 1859, the defendant, Aehle, had sued out a writ of attachment, in same court, against the property of Weber; and the defendant, Bunce, on 30th April, levied on Weber's property. The judge made an order on the 3rd of June, at Chambers, for the sale of the property levied on, under the statute in relation to sale of perishable property. Sheriff Bunce advertised under Aehle's levy, but after said levy and advertisement, and before the day of sale, Aehle instructed the defendant, Bunce, to delay and not proceed with the sale. Aehle's instructions were obeyed. The writ of attachment sued out by plaintiff was levied on Weber's property after the defendant Aehle had ordered the suspension of further proceedings under his writ. The property levied on was afterwards sold, but the proceeds were not sufficient to pay the amount due from Weber to plaintiff and that also claimed by Aehle; and the defendant, Bunce, refused to pay to plaintiff the sum due him, for which this action is brought, asking an order on Bunce to apply the proceeds to the payment of plaintiff's debt.

Douglass & Hayden, for plaintiff in error.

The direction given by the defendant, Aehle, to the sheriff “to hold up and stop the sale” of the property levied upon and advertised to be sold under his writ of attachment, rendered it, as against the writ of the plaintiff, dormant and fraudulent. He lost that preference to the satisfaction of his debt which he had by law in the first instance, and the plaintiff became entitled to the preference. The levy of the plaintiff's writ was made after the suspension of proceedings had taken place by order of the defendant, and before that order was countermanded by him and the order of sale renewed. It is against the policy of the law to permit a creditor, by his writ of attachment or execution, to acquire a lien upon the property of a debtor and retain it, without pursuing his rights under the law controlling such process, to the hindrance or delay of subsequent attachment or execution creditors. The defendant, in this case, had ample time to secure his rights without interfering with the rights of the plaintiff; but he did not choose to avail himself of the favor afforded him by law, and can blame no one but himself for the advantage lost by him and gained by the plaintiff. In support of the plaintiff's legal right to the preference over the defendant, the following authorities are relied on, viz.: Storm v. Woods, 11 John. R. 110; 1 Smith's Lead. Cas. 71, 72; United States v. Conyngham, et al., Wallace C. C. R., 178; 1 Washington C. C. R., 37; 3 Ib., 60; 2 Tucker's C., 363, 364; Field v. Livermore, 17 Mo. 218; Wise v. Darby, 9 Mo. 131; Brown v. Sheriff, 1 Mo. 108, 154.

Stephens & Vest, for defendants in error.

I. This case does not fall under the rule of law which renders a levy fraudulent as to other creditors, because the creditor...