Rickards v. Cunningham
| Citation | 6 N.W. 475,10 Neb. 417 |
| Parties | J. N. RICKARDS, PLAINTIFF IN ERROR, v. T. C. CUNNINGHAM AND OTHERS, DEFENDANTS IN ERROR |
| Decision Date | 01 September 1880 |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Richardson county. Tried below before WEAVER, J.
REVERSED AND REMANDED.
C Gillespie and J. E. Bush, for plaintiff in error, cited Cahill v. Bigelow, 18 Pick. 369. Chicago Dock Co. v. Kinzie, 49 Ill. 289. Robinson v. Uhl, 6 Neb. 328. Herman on Executions, 275, 379. Eiseley v Malchow, 9 Neb. 180. Haskell v. Varina, 111 Mass. 84. Hickok v. Coales, 2 Wend. 419. Knower v Barnard, 5 Hill, 377.
A. R. Scott and J. R. Wilhite, for defendant in error, cited Herman on Executions, sec. 184. Herkimer Bank v. Brown, 6 Hill, 232. Ludlow v. Cooper, 4 Ohio St. 18. Peck v. Tiffany, 2 N.Y. 451.
On the eleventh day of June, 1877, H. B. Grable was the owner of a quantity of corn, supposed to be about one thousand bushels, stored in a crib on his farm in Richardson county. On that day the defendant Cunningham, as sheriff of said county, levied upon said corn by virtue of an execution from the county court upon a judgment against said Grable and in favor of the firm of Hinton, Lichty & Co. The levy being made, nothing more was done under this execution, which, on the thirteenth day of the same month, was returned by order of the plaintiffs in execution, as evidenced by this indorsement thereon, viz.:
On the twenty-fifth of June, 1877, the corn still being in the crib, was sold by Grable to the plaintiff in part payment of a debt owing by him to the plaintiff's wife. There is nothing in the record in any respect impeaching the entire good faith of this purchase, and we must regard it as investing the plaintiff with whatever interest in the corn it was possible for Grable to convey.
In the meantime the defendant Keim purchased the judgment, and on the twenty-fourth day of July, 1877, he procured an "order of sale" to be issued thereon, directing the sheriff to advertise and sell the corn so previously levied upon, and which had not yet been removed from the crib where it was first seized. In obedience to this "order," the sheriff re-took possession of the corn, and was proceeding with the sale, when it was replevied from him by the plaintiff in the action now under review.
This "order of sale" seems to have been issued under the mistaken notion that the corn still remained subject to the levy of June 11; in other words, that by virtue of that levy, notwithstanding the return of the execution under which it was made, the corn was in custodia legis, and subject to the direct order of the court in its application to the payment of the judgment. And the court below also must have proceeded on the same theory in deciding the case, for otherwise it could not have been held, under the evidence, that this "order" was authority for the sheriff to re-take and sell the property. But such is not the law. As contended by plaintiff's counsel, the return of the execution by direction of the judgment creditor was a total abandonment of the levy, and left the debtor at liberty to sell the corn to whoever would purchase it. The sole authority for the sheriff to hold the corn was the execution. The return of the execution into court was a surrender of that authority, leaving the corn as free from his control as if he had made no levy upon it; and the only way in which the corn could have been legally taken...
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