Patterson v. Stephenson

• Decision Date: 30 April 1883
• Citation: 77 Mo. 329
• Parties: PATTERSON et al., Plaintiffs in Error, v. STEPHENSON.
• Court: Missouri Supreme Court

77 Mo. 329

PATTERSON et al., Plaintiffs in Error,

v.STEPHENSON.

Supreme Court of Missouri.

April Term, 1883.

Error to Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

Joshua F. Hicklin for plaintiffs in error.

Plaintiffs in error did all they could to acquire and retain a lien on the goods. By their superior diligence, they found and got them before Bailey, Wood & Co. They could not have sued in justice's court, and thereby got their writ in the hands of the constable that first took goods in his possession by virtue of writs first issued by justice. The goods could not have been taken by sheriff from constable, nor could the constable have been garnished. R. S. 1879, § 2519.

The sheriff performed every act in reference to the goods that the constable did, in the way of a levy.

Section 447, Revised Statutes, permits and invites equitable interference on the part of the circuit court in this case. The controversy should, under said section, have been determined “as right and justice required,” and not upon the theory of defendants in error, to-wit: That none but the constable, he being first in possession, could make a valid levy, for the reason that the same chattel is not susceptible of a seizure and possession by different officers at the same time. This statute shows on its face, by referring to different courts of co-ordinate jurisdiction and courts of general and limited jurisdiction, that different officers may have a valid seizure of the same property at the same time. If but one officer can have a levy of the same chattels at the same time, then the manifest intent of the legislature is defeated.

The constable's possession of the goods by virtue of former writs could not be interfered with by the sheriff, but the latter's acts operated as a valid attachment of the remainder of the goods after former attachers were satisfied, to the exclusion of those who came afterward. Dunlop v. Patterson F. Ins. Co., 6 Reporter 374; s. c., 30 Am. Rep. 283.

Wm. M. Rush, Jr., for Bailey, Wood & Co.

When goods and chattels are seized by one official under a writ from a court having jurisdiction of the cause, they are in the custody of the law until the proper time for their sale, and during this time are beyond the reach of seizure by another writ in the hands of another officer. Crocker on Sheriffs, 205, § 449; Metzner v. Graham, 57 Mo. 404; Freeman v. Howe, 24 How. 450; Taylor v. Carryl, 20 How. 583; s. c., 24 Pa. St. 259; Hagan v. Lucas, 10 Pet. 400; Buck v. Colbath, 3 Wall. 334; Ship Robert Fulton, 1 Paine 620; Ship Oliver Jordon, 2 Curtis 414; Harris v. Dennie, 3 Pet. 292; Drake on Attach., § 251. Bruce v. Vogel, 38 Mo. 100, was a case of levy upon real estate, of which only constructive possession is taken. If the goods were inaccessible, the party must be summoned as a garnishee. Sub. 4, § 420, R. S. The constable having obtained legal possession of the goods could not be ousted--they were in custodia legis, and no act of the sheriff could affect them.

J. W. Alexander and Gillihan & Brosius for the other defendants in error.

PHILIPS, C.

This is a contest among successive attaching creditors as to the order in which the proceeds of the attached property in the officers' hands shall be distributed. The record is somewhat confused, but enough is shown to indicate that a constable in Daviess county had seized, under a writ of attachment from a justice of the peace, the stock of goods of one James Stephenson. Afterward the plaintiffs in error, Patterson and others, brought suit in the circuit court of said county against said Stephenson, and sued out a writ of attachment, which on the 28th day of November, 1877, the sheriff undertook to execute on the same goods. When he arrived at the store he found the said constable in possession of the storehouse and goods, presumably under the writ of attachment from the justice's court. The constable, without yielding his possession, in conjunction with the sheriff, proceeded on the said 28th day of November, to invoice said goods, each presenting a list. “Both constable and sheriff, not knowing the legal effect of their acts, intended that the sheriff's acts should be and operate as a levy upon the goods, subject to the levy of the constable, if such acts amounted to a legal levy.” The constable maintained his possession of the goods and refused to recognize any other act of the sheriff in reference to them. Afterward it appears that Bailey, Wood & Co., and other creditors, instituted separate suits in a justice's court of said county by attachment against said Stephenson, and writs of attachment were levied by said constable on said goods while he held them, with full knowledge on the part of these attaching creditors of the prior acts of said constable and sheriff. The creditors in the justice's court obtained judgment in their suits, and under an order of said justice of the peace the goods were sold by the constable for about $1,200, of which sum about $800 were left in the constable's hands, when plaintiffs in error obtained an interlocutory judgment in their action in the circuit court; all the cases in the justice's court having in the meantime been transferred to said circuit court pursuant to the provisions of section 50, chapter 11, page 191, Wagner's Statutes.

Afterward, on the 14th day of February, 1878, the plaintiffs, Patterson and others, filed in the circuit court aforesaid a motion setting out, in substance, the facts aforesaid, asking for an order, the effect of which was that after satisfying the attachment liens prior to the date of plaintiffs' levy, to apply the remaining funds in the constable's hands first to the satisfaction of the plaintiffs' debt. In support of this motion the plaintiffs made proof of the facts aforesaid. The court overruled this motion and plaintiffs excepted. Afterward, on the same day, Bailey and others, attaching creditors in said justice's court, filed their motion in said circuit court for an order on said constable to pay over the proceeds of said goods “in the same order as the original writs of attachment against said Stephenson came into his hands and were levied by him.” This motion the court sustained, and the plaintiffs in error excepted, and bring the case here on writ of error.

There is no question under the present state of adjudications, but that the court which first acquires jurisdiction of the subject matter of litigation cannot be ousted of that jurisdiction by any subsequent proceedings instituted in any other jurisdiction. Equally true and well settled is it that an officer, who, under competent process, first seizes property, can hold that property against and to the exclusion of every other officer coming with a writ from whatever quarter, until the satisfaction of the debt for which he seized it, or the process is re-called. Metzner v. Graham, 57 Mo. 405; Taylor v. Carryl, 20 How. (U. S.) 583, 594; Drake on Attach., (5 Ed.,) § 267; Freeman v. Howe, 24 How. (U. S.) 450. And where an officer holds property under a writ of execution or attachment, and a subsequent like writ comes into his hands, he cannot seize and sell such property under the junior writ. He would be liable to the senior execution or attaching creditor for the value of the property disposed of under the junior process, as in case of positive disobedience of the first mandate, or as for a conversion. Metzner v. Graham, supra.

The counsel for defendants in error contends with much plausibility, that when the plaintiffs sued out their writ, the property being pro forma in the constable's hands under an antecedent writ, was already in custodia legis, and, therefore, the sheriff could not legally execute his writ on this property. This argument rests on the postulate that the execution of the writ of attachment is an actual seizure--a caption of the property; and, therefore, another jurisdiction and another officer cannot interfere, by a second writ, without disturbing the prior custody and possibly breaking the peace and producing conflict, confusion and disorder.

The strict logic of this rule would enforce the conclusion that when one officer under a competent writ has seized the property, it is, until the satisfaction of the debt for which the seizure was made, actually withdrawn from the operation of any subsequent writ, even in the hands of the same officer. Literally adhered to, there could be no qualified, simulated or equivalent execution of a second writ. And yet text writers and courts, singularly enough, while denying the right of the imposition of a second writ of attachment from another court by another officer...