Sears v. Lydon

• Decision Date: 31 May 1897
• Citation: 49 P. 122,5 Idaho 358
• Parties: SEARS v. LYDON
• Court: Idaho Supreme Court

49 P. 122

5 Idaho 358

SEARS v. LYDON

Supreme Court of Idaho

May 31, 1897

WRIT OF ATTACHMENT-SEIZURE OF CHATTELS UNDER.-An officer, to justify the seizure of chattels under a writ of attachment against a stranger to such writ, must show a valid writ by showing the existence of all of the jurisdictional facts that must exist before the writ can issue, and he must do this by the record or duly authenticated copy thereof of the attachment suit.

SAME-TO JUSTIFY A SALE UNDER EXECUTION.-To justify a sale under an execution, as against a stranger to the writ, an officer seeking to justify thereunder must prove a valid judgment.

MEASURE OF DAMAGES-STOCK OF MERCHANDISE-HOW ESTIMATED.-When a stock of merchandise is sued for, the measure of damage is the cost of such stock in like quantity at the place of the alleged trespass, if purchasable there in such quantity; otherwise the wholesale price of such goods on the nearest markets where they can be purchased in like quantity with necessary cost of transportation added.

HOW OFFICER MAY JUSTIFY.-Although an officer cannot fully justify a seizure under a writ of attachment or execution, valid on its face as against a stranger to such writ, without proving the jurisdictional facts upon which such writ issued, under section 3021 of the Revised Statutes, by showing absence of an actual and continued change of possession, yet he may, in such case, to protect himself against exemplary damages, show that the chattels seized by him under such writ were recently in possession of the defendant to the writ, and, in connection therewith, he may also show a lack of change of possession, but such showing will only protect him from exemplary damages, when he fails to prove the jurisdictional facts necessary to the issuance of a valid writ; he is permitted to make this showing to prove his good faith in making the seizure.

EVIDENCE PROVING FRAUD.-Circumstances are admissible to prove fraud ex necessitate, that would not be admissible in ordinary cases.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded.

James W. Reid, for Appellant.

This case involves the validity of a voluntary conveyance by one brother to another, with the alleged intention of hindering delaying and defrauding creditors. Such conveyances have always been regarded with disfavor by the courts, and statutes against them have received a liberal construction. In suits instituted for the purpose of impeaching transactions on the ground of fraud, specific facts must be alleged, and in what the fraud consists and how it has been effected. (8 Am. & Eng. Ency. of Law, 653, and authorities there cited; Harkness v. Smith, 3 Idaho 221, 28 P. 423; Ferbroche v. Martin, 3 Idaho 573, 32 P. 252.)

James E. Babb, for Respondent.

This was an action brought by Frank D. Sears against Harry Lydon, for damages for taking from possession of plaintiff and converting to his own use personal property, consisting of a stock of harness and saddlery of the plaintiff. Defendant's answer put the complaint at issue, and then in two separate defenses in different forms averred in substance that at all times in controversy one Charles F. Sears, and not the plaintiff, was the owner of the property in question; that one Mary E. Goddard began an action in the district court, in Shoshone county, Idaho against said C. F. Sears and one H. P. Barger, partners as Barger & Sears, to recover judgment on two notes of said Barger & Sears; that a summons was duly issued in the action the day it was begun, and that on that day a writ of attachment was duly issued in the action and directed to the defendant as sheriff of Nez Perces county. That on the twenty-eighth day of August, 1895, the defendant received said writ of attachment and delivered a true copy of said writ of attachment to the plaintiff in this action, in whose possession the property described in said complaint then was. The plaintiff, introduced as a witness, made out his case most clearly and conclusively. His case was, in short, this: That A. Cohen and C. F. Sears began business at Lewiston as partners as The Lewiston Harness and Saddle Company. Neither of the partners resided at Lewiston, and plaintiff was employed by them as manager of the business. Later, C. F. Sears bought out A. Cohen, the other partner, when the name of the business was changed from Lewiston Harness and Saddle Company to Sears Saddlery Company, and plaintiff continued as the manager of the business on a salary. On May 31, 1895, there was due and unpaid to plaintiff for salary $ 987.59, and he took a note for that amount and a mortgage on the merchandise in question to secure it. Plaintiff then, to avoid expense of a foreclosure, attempted to, and did, buy the mortgaged stock of merchandise from C. F. Sears. He received a bill of sale, and the same was recorded in recorder's office in Nez Perces county, August 10, 1895. The consideration of the bill of sale was $ 1,796.87, consisting of $ 1,076.87 due on wages, being the amount secured by chattel mortgage and the interest, and wages accruing since, $ 500 on account of having paid as surety a note of C. F. Sears for that amount, and his note of $ 220 balance of purchase price. There is not even a suggestion in the evidence impeaching any of that consideration for which plaintiff received that bill of sale. A sheriff, to defend action for damages for seizing under writ of attachment personal property in the possession of one not a defendant in the writ, must prove all the conditions precedent to the issue of the writ, as the filing of complaint, issue of summons, filing of affidavit and bond, and cannot rely upon the recitals of those matters in the writ as proof thereof. He might do so if he took the property from possession of a defendant in the writ, but when taken from a stranger the rule is different. If he do not prove those matters, a sale good between the parties is good as to him, and he has no right to an inquiry into circumstances which would avoid a transfer as to creditors. (Thornburg v. Hand, 7 Cal. 554.) The reason for the distinction between cases where the writ is levied upon property in possession of the defendant in the writ and where the property is found in possession of a stranger to the writ is found in the fact that the defendant may, if the attachment has been improvidently issued, move to have it quashed or have an action upon the undertaking while a third party, a stranger to the writ and record, could not be heard for such purpose; hence the justice of requiring an officer who takes property not from the defendant against whom the writ runs, but from the possession of a stranger, whom the law presumes to own it, to show not only his writ, but that it issued regularly upon a valid demand against the defendant named in such writ. (Paige v. O'Neal, 12 Cal. 483, 492; Oberfelder v. Kavanaugh, 21 Neb. 483, 32 N.W. 295; Williams v. Eikenberry, 22 Neb. 210, 34 N.W. 373; Paxton v. Moravek, 31 Neb. 305, 47 N.W. 919; Bartlett v. Cheesebrough, 32 Neb. 339, 49 N.W. 360; Winchell v. McKinzie, 35 Neb. 813, 53 N.W. 975.) The existence of a judgment in the county of its rendition, and an execution thereon to the sheriff of another county, affords no presumption that the judgment was docketed in the latter county so as to render the execution valid. (Best on Evidence, sec. 300; United States v. Ross, 92 U.S. 281; Befay v. Wheeler, 84 Wis. 135, 142, 53 N.W. 1121; Knox v. Marshal, 19 Cal. 622; Kane v. Desmond, 63 Cal. 465.)

QUARLES J., HUSTON, J. Sullivan, C. J., Huston, J., and Quarles, J., concurring.

OPINION

QUARLES, J.

On the twenty-third day of August, 1895, a writ of attachment was issued out of the district court of the first judicial district of Idaho in and for Shoshone county, in an action there commenced by Mary E. Goddard, as plaintiff, against H. P. Barger and C. F. Sears, as defendants, in favor of said plaintiff and against the said defendants, to secure a debt alleged to be due to said plaintiff from the said defendants, in the sum of $ 1,127, which writ of attachment was directed to the sheriff of Nez Perces county; and the same was on the twenty-eighth day of August, 1895, placed in the hands of the appellant, as sheriff of Nez Perces county, who on the same day seized under said attachment a stock of merchandise, consisting of harness, saddles, bridle and such goods as are usually kept in a saddle and harness store. Afterward said stock of merchandise was sold under an execution that issued in the aforesaid action, and sold by the appellant, as sheriff, at execution sale. On October 29, 1895, the respondent, as plaintiff, commenced this action against the appellant, as defendant, to recover damages for the alleged conversion of said stock of merchandise. The defendant answered, and sought to justify under said attachment and execution; denied plaintiff's ownership; alleged the property in question to have been, at the time of the seizure thereof under said attachment, owned by C. F. Sears, one of the defendants in said attachment; and averred specific acts tending to show that C. F. Sears had fraudulently attempted to transfer said stock of merchandise to the plaintiff a few days prior to said levy, but alleged that there had been no actual or continued change of possession of the said stock of merchandise between plaintiff and said C. F. Sears. The cause was tried before a jury on the second day of June, 1896, and a verdict returned in favor of the plaintiff for the sum of $ 1,700.

In his complaint the plaintiff avers the property in question to have been at the time of the seizure of the value of $ 1,600 and says that by reason of said conversion he was damaged in the sum of $ 2,500, for which he demands...