St. Louis, Alton & Chicago R.R. Co v. Castello

• Citation: 28 Mo. 379
• Parties: THE ST. LOUIS, ALTON AND CHICAGO RAILROAD COMPANY, Defendant in Error, v. CASTELLO, Plaintiff in Error.
• Decision Date: 31 March 1859
• Court: United States State Supreme Court of Missouri

28 Mo. 379

THE ST. LOUIS, ALTON AND CHICAGO RAILROAD COMPANY, Defendant in Error,

v.CASTELLO, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1859.

1. Where a sheriff in St. Louis county levies an execution upon personal property, a third person claiming the same may maintain an action against the sheriff for its possession without making claim thereto in accordance with the third section of the local act of March 3, 1855. (Sess. Acts, 1855, p. 464.)

2. A sheriff, under an execution against A., levied upon a lot of gold and silver and copper coins and paper currency belonging to B.; B., with a view to facilitate the institution of a suit by himself to test his title, substituted, in the hands of the sheriff, for the property levied on, bank bills of large denomination, the exchange being made by him and the sheriff under the understanding that suit would be brought by B. for the possession of the bank bills thus substituted. Held, that B. might, under such circumstances, maintain an action against the sheriff for the possession of the bank bills.

Error to St. Louis Court of Common Pleas.

This was an action against James Castello, sheriff of St. Louis county, to recover possession of six bank bills--five bills of the denomination of one hundred dollars, and one bill of the denomination of fifty dollars, all bills of the Bank of the State of Missouri. The facts as they appeared in evidence at the trial are substantially as follows: Under an execution in favor of one Joseph Farrell and against the Chicago and Mississippi Railroad Company, Castello, the defendant in the present suit, as sheriff, levied on a lot of gold, silver and copper coins and paper currency. The moneys thus levied on did not belong to the defendant in the execution but to the St. Louis, Alton and Chicago Railroad Company. There was evidence tending to show that, while the moneys thus levied on were in the hand of the sheriff, the St. Louis, Alton and Chicago Railroad Company substituted therefor the bank bills sued for in the present action; that this substitution and exchange were made to facilitate the institution of a suit by said company in assertion of its title, and under an understanding that the property thus substituted should be considered the property levied on instead of that first taken. Among other instructions which the court gave was the following: “3. If the court believe from the evidence that the bank bills mentioned in the plaintiff's petition were the property of plaintiff, and...