Ryan Drug Co. v. Peacock

• Decision Date: 13 May 1889
• Citation: 40 Minn. 470,42 N.W. 298
• Parties: RYAN DRUG CO. v PEACOCK
• Court: Minnesota Supreme Court

40 Minn. 470

42 N.W. 298

RYAN DRUG CO.vPEACOCK

Supreme Court of Minnesota.

May 13, 1889.

(Syllabus by the Court.)

1. If a particular fact be admitted by the pleadings, one party cannot claim that the other is estopped to prove it. Thus, where it was admitted that the defendant, the sheriff, had restored to the defendant, in a writ of attachment after it was dissolved, the property levied on, the plaintiff, who was also the plaintiff in the writ, cannot claim that the defendant is estopped because the fact is not stated in the return on the writ.

2. Upon the dissolution of a writ of attachment, the officer is not bound to retain the property to enable the plaintiff to appeal from the order dissolving it, and give a stay-bond.

Appeal from district court, Pope county; BAXTER, Judge.

Action by the Ryan Drug Company against Joseph Peacock, sheriff of Pope county. Plaintiff appeals.

Wm. C. Bicknell, for appellant.

Chas. P. Reeves, for respondent.

GILFILLAN, C. J.

Appeal from a judgment in favor of defendant upon a trial by the court without a jury. The action was against the defendant, sheriff of the county of Pope, for failure to make the money upon an execution upon a judgment of the district court in favor of this plaintiff against a firm styled “Christianson & Hagen,” out of their personal property, which prior to the judgment he had levied upon under a writ of attachment issued in the action. The facts found by the court below, so far as is necessary to state them in order to present the points made by the appellant, are these: The action against Christianson & Hagen was commenced February 4, 1886. February 5th the writ of attachment was issued and delivered to this defendant, then sheriff, and on the same day was levied on the property. March 6th the writ was set aside by the district court. March 9th this defendant delivered the attached property to the defendants in the writ on their demand, and on their serving on him the order setting aside the writ. April 19th the plaintiff appealed from said order, filing a bond for a stay, and on December 11th following the order was reversed by this court. ¹ June 21, 1886, judgment was recovered in said action in favor of plaintiff, and against Christianson & Hagen. February 3, 1887, execution on the judgment was issued to this defendant, still sheriff, and by him, on May 2, 1887, was returned wholly unsatisfied.

Two points are made by appellant: First, the sheriff is estopped by his return on the writ of attachment from asserting that he returned the property to the defendants. The return indorsed by him on the writ, and by him filed with it, on August 27, 1886, certifies to the levy of the writ on the property, but does not mention what further was done. Second. The sheriff was not justified in returningthe property on the 9th day of March.

As to the first of these points, the court held in State v. Penner, 27 Minn. 269,6 N. W. Rep. 790, that a sheriff is, as a general rule, in any controversy arising between him and any of the parties to the action or their privies, estopped from denying the truth of his return as to all matters material to be returned. But the plaintiff cannot now take advantage of the estoppel,...