Shufeldt v. Barlass
| Decision Date | 20 January 1892 |
| Citation | 33 Neb. 785,51 N.W. 134 |
| Parties | SHUFELDT ET AL. v. BARLASS, SHERIFF. |
| Court | Nebraska Supreme Court |
1. The district court has power to permit a sheriff to amend his return on a process to conform to the facts upon proper showing and notice to the parties interested, and the permitting of such an amendment will not be disturbed by the supreme court where it appears there has been no abuse of discretion.
2. In proceedings to amerce a sheriff for failure to sell, under an order of sale, certain attached personalty, it was established that a valid chattel mortgage existed thereon at the time of the levy of the attachment for the full value of the goods. Subsequently the mortgagee brought an action of conversion against the officer, in which a judgment was recovered for the value of the property, which judgment was satisfied by the officer returning the goods and paying to the mortgagee a large sum of money. The attaching creditor failed to give the sheriff an indemnifying bond. The district court held that the sheriff was not liable to amercement. Held proper.
Error to district court, Adams county; GASLIN, Judge.
Amercement proceedings by Henry H. Shufeldt & Co. against David L. Barlass, a sheriff, for his failure to make sale under a certain levy of attachment. Judgment for defendant. Plaintiffs bring error. Affirmed.Bowen & Hoeppner, for plaintiffs in error.
Capps, McCreary & Stevens and John M. Ragan, for defendant in error.
The plaintiff in error presented to the district court of Adams county a motion to amerce the defendant in error, sheriff of said county, for failing to execute and return an order of sale of attached property issued out of said court, and directed to and placed in the hands of the defendant. To the motion the sheriff filed an answer setting up facts in justification of his acts, and that the plaintiff had not been prejudiced or damaged thereby. A reply was filed denying all the allegations of the answer. Upon the hearing the court held that the defendant was not liable to amercement, and overruled said motion. The plaintiff prosecutes error. On the 21st day of February, 1888, the plaintiff in error commenced an action in the district court of Adams county against one Emanuel Fist on an accepted draft to recover the sum of $347.57, and a order of attachment was issued, directed to and placed in the hands of the defendant, as sheriff, for execution. Subsequently the officer made return of the writ that he had levied the same upon 59 cases of assorted liquors, 9 casks of assorted liquors, 23 barrels of liquors, 11 skeleton cases, 7 boxes of flasks, and 13 sacks of corks. On June 11, 1888, the plaintiff recovered a judgment against Fist for the sum of $348.70 debt and costs of suit, and obtained an order for the sale of the attached property. On January 18, 1889, an order of sale was issued on said judgment and delivered to the sheriff, which not being returned, on May 20, 1889, amercement proceedings were commenced. On the same day the sheriff returned the order of sale, stating in the return that he had made no sale, for the reason that no property was taken by him under the order of attachment; and that the return on the writ of attachment, to the effect that property had been taken, was a mistake. On the same day the sheriff, after first obtaining leave of the court therefor, filed an amended return to the original order of attachment, which states that no property was levied upon, and that the original return was erroneously made.
The first error assigned is in permitting the officer to amend his return to the order of attachment. The undisputed testimony shows that at the time the order of attachment was received by the sheriff the property of Fist was held by the officer under certain writs of attachment sued out by other creditors of Fist, and that the property was also claimed by the A....
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Azar v. Slack.
...769, Ann. Cas. 1917D, 381; Miller v. Ottaway, 81 Mich. 196, 45 N. W. 665, 8 L. R. A. 428, 21 Am. St. Rep. 513; Shufeldt et al. v. Barlass, Sheriff, 33 Neb. 785, 51 N. W. 134; Hakes v. Thayer et al., 165 Mich. 476, 131 N. W. 174; East Lansing State Bank v. Keil, 213 Mich. 17, 180 N. W. 347; ......
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Mintle v. Sylvester, 35641.
...action was pending against him based on the return. See, also, 32 Cyc. 539; 21 R. C. L. 1329; O'Brien v. Gaslin, supra; Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134;Schmidt v. Stolowski, 126 Wis. 55, 105 N. W. 44;Wade v. Wade, 92 Or. 642, 176 Pac. 192, 178 Pac. 799, 7 A. L. R. 1143, and c......
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Mintle v. Sylvester
...but he was permitted to amend the return to show that he served it in his individual capacity, and not as an officer. See, also, Shufeldt v. Barlass, supra. It the fact of service that confers jurisdiction; not the return of service merely. The return of service of notice made by one servin......
- Henry H. Shufeldt & Co. v. Barlass