Palmer v. Crane

• Decision Date: 31 July 1845
• Citation: 9 Mo. 269
• Parties: PALMER v. CRANE.
• Court: Missouri Supreme Court

9 Mo. 269

PALMER

v.CRANE.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO MONTGOMERY.

CAVE, for Plaintiff.

LEONARD and BAY, for Defendant. 1. The declaration is defective. Admitting all the facts set forth, the plaintiff is not injured, because he was not prevented from prosecuting his suit by the alleged acts of the defendant, and he has no right to have the property levied upon, applied to the satisfaction of his demand, until he has established it by the judgment of the court. See points made in this case, 8 Mo. R. 620-1. In the opinion delivered when this case was last before the court, there is a misapprehension of the facts. The sheriff did not return that “no goods of the defendant in the attachment could be found, except some already levied on to satisfy executions,” &c., but he returned that he levied the attachment on goods already in his possession under other executions. It is expressly charged in the declaration, that the sheriff levied the attachment upon the goods mentioned, and the only complaint is that the goods were not subject to the execution mentioned in the return. There is not even an allegation that the goods were not of sufficient value to satisfy both the executions in the sheriff's hands, and the demand of the plaintiff. 2. There is a manifest distinction between this case and an action in England, and in those States in which the English practice prevails, against the sheriff for an escape in mesne process. If the sheriff suffers an escape on mesne process, the plaintiff is prevented from declaring for want of an appearance. He is in effect prevented from prosecuting his action against the defendant, and therefore sustains immediate damage by the act of the sheriff, and his only remedy is, by action against the sheriff. Comyn's Dig. title Pleader, Conn't C. 2; 3 Chitty's Pr. 437; the case cited in the opinion of the court, viz: 4 McCord, 372, is founded upon the English practice. The authorities cited are English, except the case in 5 Johns. R. which is not in point, and besides the English practice then prevailed in New York. 3. There was nothing in the alleged act of the sheriff, that prevented the plaintiff from prosecuting his action against the Litchtons. He certainly could sustain no injury until a failure to satisfy his demand as ascertained by the judgment of the court, out of the goods levied upon. The plaintiff had no property in the goods attached, and his right to satisfy his debt out of the goods, depended...