Riethmann v. Godsman

• Decision Date: 05 October 1896
• Court: Colorado Supreme Court
• Parties: RIETHMANN et al v. GODSMAN.

46 P. 684

23 Colo. 202

RIETHMANN et al v. GODSMAN.

Supreme Court of Colorado

October 5, 1896

Appeal from district court, Arapahoe county.

Action by P. B. Godsman against John J. Riethmann and others. Judgment for plaintiff, and certain defendants appeal. Affirmed.

This was an action brought by P. B. Godsman, as plaintiff, against the defendants Riethmann & Co. and W. K. Burchinell, for damages alleged to have been sustained by him on account of the wrongful taking and conversion by the defendants of his stock of drugs and druggists' merchandise. There are two defenses in the answer; one a general denial, the other an admission of the taking and a justification. The justification is that the property in question never belonged to the plaintiff, but that it was the property of one J. J Dunnagan, and, as such, was, by Burchinell, as sheriff levied upon under a writ of attachment issued in an action then pending between Riethmann & Co., as plaintiffs, and J J. Dunnagan, as defendant; and that thereafter judgment was duly rendered in said action for the plaintiffs against the defendant, and the property theretofore attached was sold under an execution sued out under the said judgment, and the proceeds of such sale applied in part satisfaction of said judgment; that the pretended sale of the property by Dunnagan to Godsman before the levy of the writ of attachment was void, because made with intent on the part of Dunnagan to delay his creditors, of which Godsman had notice. The affirmative defense was denied in the replication, and upon the issues thus joined trial was had before a jury, whose verdict was in favor of the defendant Burchinell, but against the defendants Riethmann & Co., and in favor of the plaintiff, for $3,216.50, on which a judgment was entered. Upon the plaintiff's motion for a new trial as to the defendant Burchinell, the court granted the same, and subsequently plaintiff dismissed the action as to Burchinell without prejudice. From the judgment against them, Riethmann & Co. have appealed to this court.

Rising, Brown & Malone, for appellants.

J. E. Robinson, for appellee.

CAMPBELL J. (after stating the facts).

Of the numerous errors assigned, only such as are argued in the briefs are considered.

1. At the trial the plaintiff testified that when the deputy sheriff, accompanied by one of the members of the firm of Riethmann & Co., came into his store to levy the writ of attachment, he informed them orally that the goods were his own, protested against their seizure, and, when taken by the officer, demanded their return. Immediately thereafter, and in connection therewith, he served upon the officer and the defendants Riethmann & Co. a written protest to the same effect. A copy of this writing was admitted in evidence over the defendants' objection, and this ruling is assigned as error. Its admission is said to be improper, because it was not necessary to refresh the memory of the witness, and that it was a self-serving declaration of the plaintiff, because therein was a statement of the plaintiff that the goods were claimed to be attached by Riethmann & Co. The ruling, however, was right. Both the oral claim of ownership and the written demand and protest were admissible, neither one to prove or assist the other, but each as independent evidence of the facts of claim of ownership, a protest against seizure, and a demand for the return of the property. Greenl. Ev. (14th. Ed.) § 90.

2. Oral testimony was admitted for the plaintiff as to what Duggan (the deputy sheriff) did in the way of taking possession of the goods. This is said to be error, on the ground that the best evidence of the sheriff's execution of the attachment writ is the return of the officer to the writ. In some cases, and for some purposes, this may be true. In this case the plaintiff sues the defendants, as individuals, for the wrongful taking and conversion of his property. It certainly is not incumbent on plaintiff to prove the seizure by the introduction of court records and the files of a case to which he is not a party. He is not bound by the judgment in that case, nor is he restricted to record evidence of the taking and conversion of his property. He may, if he can, show this by the testimony of eyewitnesses. When the defendants come to their justification for the taking, then they may, by their attachment writ and the return of the sheriff, show what they did to the property. Moreover, if the admission of oral testimony was error, it was abundantly cured when the plaintiff introduced the attachment writ and the return, and when both parties, during the progress of the trial, referred to and commented upon the same.

3. It is further contended that, inasmuch as Riethmann & Co., the attaching creditors, did not direct the sheriff to levy the writ upon this particular property, they are not jointly liable with the sheriff, even though the taking was wrongful. Authorities to this effect are cited. The rule, however, is inapplicable to this case, for the joint answer of the defendants alleges that the property did not belong to the plaintiff, but was Dunnagan's, when seized by the sheriff. The plaintiffs in the attachment suit gave the sheriff an indemnity bond before he would levy on this property, and their joint answer, as well as their own evidence, further shows that after the recovery of the judgment by them against Riethmann they caused a special execution to be issued upon that judgment, commanding the sheriff to sell this same property; and such sale was made, and the proceeds thereof applied in satisfaction of their judgment. There can be no stronger case of ratification of the officer's acts than by the attaching creditors thus knowingly approving of them and receiving their benefits, and this makes them jointly liable with the sheriff. Cooley, Torts, pp. 129-137; Dyett v. Eyman, 129 N.Y. 351, 29 N.E. 261; Drake, Attachm. § 196. The fact that some of these acts of ratification were subsequent in time to the date of the wrongful taking, as alleged in the complaint, is not material, for Riethmann & Co., in their answer, set up, and in their evidence proved, these subsequent acts as their justification for the taking.

4. Another point is that the record shows that this property was levied upon under a prior writ of attachment, and, thus being in the custody of the law, for a subsequent levy thereon the plaintiff in the second suit is not liable. To this we are referred to Drake, Attachm. § 196b. The case of Ginsberg v Pohl, 35 Md. 505, is cited by the author as authority for the proposition. An examination of the opinion shows that the ruling was based upon previous decisions of the same court holding the goods levied upon under a valid writ of attachment, whether belonging to the debtor or to a third person, are in the custody of the law; and the true owner thereof cannot maintain an action of replevin for them. The rule is otherwise in New York, and so, also, in this state. Wilde v. Rawles, 13 Colo. 583, 22 P. 897; Mills' Ann. Code, p. 258, note 20; 26 Am. & Eng. Enc. Law, p. 602, and notes; Thompson v. Button, 14 Johns. 86; Clark v. Skinner, 20 Johns. 465. It would seem to...