Palmer v. McMaster

• Decision Date: 09 February 1891
• Citation: 25 P. 1056,10 Mont. 390
• Parties: PALMER v. McMASTER.
• Court: Montana Supreme Court

25 P. 1056

10 Mont. 390

PALMER v. McMASTER.

Supreme Court of Montana

February 9, 1891

Appeal from district court, Deer Lodge county; D. M. DURFEE, Judge.

Robinson & Stapleton, for appellant.

Cole & Whitehill, for respondent.

BLAKE C.J.

This is the second appeal which has been before the court. The facts which are recited in the reports, (8 Mont. 186, 19 P. 585,) will not be repeated in this opinion. At the trial the jury returned a verdict for the sum of $2,068, and judgment was entered for the respondent for this amount. The motion of the appellant for a new trial was overruled.

We have deliberated upon all the questtions which have been presented for adjustment, and arrived at the conclusion that the instructions were conflicting and misleading. As there must be a new trial of the case, we will review all the questions which must be determined at that time in the court below. The executions which are mentioned in the report of the case, supra, were offered in evidence by the appellant. They were regular upon their face, and one of them stated that James M. Bailey recovered April 22, 1884, in the district court, a judgment against Willaim J. Palmer for the sum of $645 damages and $277.30, costs. The sheriff made this return thereon:

"I do hereby certify that I received the annexed execution on the 23d day of April, A. D. 1884, and executed same by levying upon and selling on the 3d day of May, A. D. 1884 the following described property, to-wit: [description of property in controversy.] Exhibit:

Amount of judgment .........	$922	33
Accruing costs ...............	33	14
	--------	----
Amount received from sale ..	$907	00
To deficiency ...............	48	44"

The bill of exceptions states that this evidence was excluded by the court "for the reason that defendant did not offer to prove any valid judgment upon which said execution was issued, and without such judgment defendant could not justify." Upon the first appeal it was held that the judgments which were entered in favor of said Bailey and Albert Kleinschmidt and against the said W. J. Palmer, and for the enforcement of which said executions were issued," were void, and of no effect." 8 Mont. 194 19 P. 585. Under the decisions of this court, the ruling complained of was correct. Ford v. McMaster, 6 Mont. 240, 11 P. 669; Marcum v. Coleman, 8 Mont. 196, 19 P. 394. It also appears in the transcript that "the defendant asked leave to amend his answer, setting up more fully the indebtedness on which James M. Bailey and Kleinschmidt & Co. instituted the suits in which the attachments were issued against said W. J. Palmer, in which said property was taken by defendant, and the complaint, affidavit, and undertaking for attachment therein, and the attachments issued in said actions, as a justification to him for taking said property." The court refused to allow this amendment to be made, and would not permit the testimony tending to prove the averments thereof to be introduced. The writs of attachment in the actions referred to were issued to authorize the officer to levy upon and hold said property as a security for the satisfaction of any judgment which might be recovered by the plaintiffs. When the sheriff sold and delivered the same under the foregoing execution, and accounted for the proceeds thereof, the possession and lien which were acquired by virtue of the proceedings in attachment were lost. This property was disposed of without any valid process, and under these conditions the officer is deemed a trespasser ab initio. The writs of attachment in the actions pending against W. J. Palmer possess no vitality. In Ross v. Philbrick, 39 Me. 29, this statement appears in the facts: "The counsel for defendant requested the court to instruct the jury that, as the property sued for was lawfully attached by Burnham, and that suit still pending in court, the plaintiff can maintain no action to recover the value of that property while so pending, on account of defendant's having sold the same, although the sale was not conformable to the statute." The court, by Mr. Justice CUTTING, said: "Here, then, was an abuse of authority, and the defendant, according to the rule, was a trespasser ab initio. *** But it is contended that, so long as the process upon which the property in controversy was attached is pending in court, the plaintiff cannot sustain this action. *** An officer who has been guilty of a trespass from the beginning cannot invoke to his aid the process which he has abused. He places himself in the same situation he would have occupied had he seized the property without any process, and taken it from the owner's possession; and what consequence is it to the officer or the attaching creditor that the suit is pending when the attachment is dissolved, and can no longer be made available to satisfy a subsequent execution?" Drake, Attachm. (6th Ed.) § 291; Zschocke v. People, 62 Ill. 127. There was no error in the action of the court upon the amendment which was proposed to...