People ex rel. Springett v. Colerick
| Decision Date | 27 October 1887 |
| Citation | 67 Mich. 362,34 N.W. 683 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE ex rel. SPRINGETT v. COLERICK and others. |
Error to circuit court, Lapeer county; W.W. STICKNEY, Judge.
Dwight N. Lowell, (A.B. Maynard, of counsel,) for plaintiff, appellant.
Geer & Williams, for appellees.
In 1883 the defendant Colerick was sheriff of the county of Lapeer and the other defendants were his bondsmen. On the eleventh day of February, 1884, the plaintiff commenced suit by attachment in the circuit court for the county of Lapeer against William Merritt and Frederick V. Balch. The writ was directed to said sheriff, and placed in his hands for service with direction to execute its command. The declaration then alleges that said sheriff did on the day the writ was issued, and before 9 o'clock A.M., attach certain lands of the defendants by virtue of the writ, and that it became the duty of the sheriff to protect and preserve such lien, by forthwith filing the necessary copy of the levy required by law in the office of register of deeds of said county, but he neglected so to do until the twelfth day of February, at 4 o'clock P.M., thereafter, by reason of which negligence the plaintiff lost his lien, which was of great value by reason of having obtained judgment against Merritt & Balch in the suit thus commenced for the sum of $665.15, damages and costs taxed at the sum of $36.50; that he has been unable to collect said judgment on execution issued for that purpose; and that said sheriff did not perform the condition of his bond by faithfully performing the duties of his office in the service of the said writ of attachment, and in protecting the lien thereunder to satisfy such judgment, but negligently, carelessly, and fraudulently failed to deposit a certified copy of the writ, with a description of the lands levied upon, when he made his levy, in said register's office, and that by means thereof the defendants conveyed and incumbered the lands so attached before the filing of the said levy with the said register, whereby the plaintiff lost the benefit of the seizure under his writ, to his damage $10,000; and that said sheriff had ample time after such seizure, and before the said conveyances and incumbrances, to deposit such copy with said register. The defendants all appeared and pleaded the general issue. The cause was tried before the circuit judge and a jury, and the defendants obtained the verdict in their favor. The plaintiff brings error.
From the record it appears that Merritt & Balch purchased the real estate levied upon of James S. Johnson, on the tenth day of February, 1883, and on the same day gave back a mortgage to Johnson for the sum of $400, payable on the first day of February, 1884, with interest at 8 per cent. This mortgage was foreclosed by advertisement, and the property sold to William W. Taylor, one of the sheriff's sureties, on the twenty-second day of July, 1884. Neither Mr. Merritt nor Mr. Balch were sworn in the case; but it appears from the testimony, undisputed, that the lands purchased of Johnson were used by them as manufacturing grounds, and that several buildings were erected thereon, containing a large amount of material, and used in the manufacturing of heading. And it further appears that on or about the twenty-ninth day of December, 1883, the said Merritt & Balch made a general assignment of all their property for the benefit of their creditors, to Uriel Townsend of Almont, Lapeer county.
The claim upon which the attachment in this case was issued is not disputed, and it appears that the plaintiff had made an attempt to enforce said claim by attachment, but failed because of inability to get service before the assignment was made and filed. The defendant sheriff was the officer intrusted with the service of that writ. About the time the writ in this case was issued, the plaintiff and assignee seemed to understand that the assignment was of no validity. Mr. Townsend was sworn as a witness on the part of the defendants, and upon this subject he testified: With this understanding, the plaintiff, on the eleventh day of February, 1884, renewed his suit by attachment, and we now have a suit before us for consideration, based substantially upon the alleged negligence of the sheriff in making service of the writ and filing notice thereof.
The plaintiff, apprehensive of the necessity for haste in the matter, took the precaution to go to the sheriff's office or house the evening before, it being Sunday evening, for the purpose of notifying him of the necessities of the case, and informed him that the writ would be issued and ready for him soon after midnight. It is conceded by the testimony that the sheriff received the writ about 1 o'clock in the morning and the plaintiff and Mr. Ash, who had a claim against Merritt & Balch, depending upon the same state of facts, had also taken out an attachment, and was with the plaintiff at the time, to give his writ to the sheriff for service. Both testify that when the plaintiff handed his writ to the sheriff, he told him he wished him to attend to it immediately; that he said to him, Plaintiff further stated that the sheriff told him that he then levied upon the real estate. This interview he says occurred at the city of Lapeer, the county-seat, and but a short distance from the register's office. The sheriff denies that he was requested by the plaintiff to make a levy on the real estate, or that he told the plaintiff and Ash that he had made such levy that night, but says these were the first writs that came into his hands. He further says that the plaintiff told him: "I want you to go to Almont now [a town 22 miles distant] as soon as you can, and attach all the property of Merritt & Balch." It further appears by the record that the sheriff remained in Lapeer until a quarter past 8 o'clock in the morning, during which time the sheriff says he saw the plaintiff's attorney, who told him to go to Almont as quick as he could, and attach all the property there; that there was a "lot" of personal property there. The plaintiff's attorney also testified that at this time the sheriff told him he had levied upon the real estate. This, however, the sheriff denies. He proceeded to Almont, and made his levy on the real estate sometime in the afternoon after, and did not return to Lapeer until afternoon of the 12th. It further appears from the testimony that after he left for Almont, where, the property all was, on the eleventh and before he made his levy, Merritt & Balch executed a mortgage for $2,100 upon the real estate to Warren Balch, and the same was placed upon record at 11 o'clock and 30 minutes of the same day, whereby the plaintiff was deprived of the opportunity of securing anything out of which to collect his judgment. The plaintiff claims in any event, under the instructions, as the sheriff states them, received from the plaintiff and his attorney, it was...
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