State ex rel. Boyington v. Ranson

• Decision Date: 30 April 1885
• Citation: 86 Mo. 327
• Parties: THE STATE ex rel. BOYINGTON, Appellant, v. RANSON et al.
• Court: Missouri Supreme Court

86 Mo. 327

THE STATE ex rel. BOYINGTON, Appellant,

v.RANSON et al.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Bryant, Holmes & Waddill for appellant.

The defendant in the attachment suit having been personally served, the judgment and execution against him were general. 1 W. S. pp. 188, 189, secs. 36, 40. And by virtue of the provisions of 2 Wagner's Statutes, page 841, section five, that execution was a perfect and subsisting lien on the goods, which had been seized under the writ of attachment and which were then in the custody of defendant Ranson, as constable. “In all cases of seizure of personal property, under attachment, the officer is compelled to determine, at his peril, whether the property seized is that of the defendant in the writ.” After the officer has so determined that the property is the defendant's, and has seized it under the attachment, the property instantly passes into the custody of the law by order of the court issuing the writ of attachment, and is from that time forth subject to the orders of that court; so that when the plaintiff's debt ripened into a judgment, it was the plain duty of the officer to have obeyed the mandate of the court contained in the execution, and have levied the same, a general execution under the circumstances of this case, where the defendant has been personally served, having precisely the same effect as a special execution. R. S. 1879, sec. 455; 69 Mo. 149. If the property of a third person is seized under a writ of attachment, he has, certainly while the attachment is pending (and most, if not all of them even afterward), several remedies open to him. He may interplead, maintain replevin, trespass, an action on the bond of the officer, or (under R. S. 1879, secs. 3023, 3025), demand the property, and if not delivered, sue upon the indemnifying bond. State ex rel. v. Langdon, 57 Mo. 353; State ex rel. v. Fitzpatrick, 64 Mo. 185. And if the claimant interplead, and his interplea be sustained, he may still maintain trespass against the officer ( Clark v. Brott, 71 Mo. 473); or against the plaintiffs, if they defend the interplea. Perrin v. Claflin, 11 Mo. 13. This being the case the claimant could just as well maintain any one of the other remedies already mentioned, if applicable to the then condition of the property, and would afford him more adequate and complete redress. “The right to interplead is in the nature of an action of replevin, engrafted upon a suit by attachment.” Burgert v. Borchert, 59 Mo. 85. It is tantamount to an action of replevin without bond and will not absolve an officer from his duty to levy an execution.

C. O. Tichenor for respondent.

(1) Without the statute, parties could not come into court as interpleaders. Gordon v. McCurdy, 26 Mo. 305; Risher v. Gilpin, 29 Ind. 53. (2) The issues upon the interplea shall be tried without unnecessary delay. R. S., sec. 449; Keiser's Adm'r v. Moore, 16 Mo. 180; Ladd v. Cousins, 35 Mo. 516. (3) The writ of attachment is to hold the property seized to satisfy a judgment to be obtained, subject to the result of a plea in abatement or an interpleader, in case such should be filed. The property is in the custody of the court. State to use, etc., v. Langdon, 57 Mo. 355; Metzler v. Graham, 66 Mo. 660; S. C., 57 Mo. 410; Weisnecker v. Kepler, 7 Mo. 54; O'Brien v. Norris, 16 Md. 129; Hall v. Richardson, Ib. 410; Heinman v. King, 8 B. Mon. 565; Hershey v. The Institute, 15 Ark. 130. It is because of this that state and United States courts refuse to interfere with property, seized by the writs of the other. See cases cited in Metzler v. Graham, 57 Mo. 410. (4) The interplea concerns the property. It is the road by which the claimant pursues it; a money judgment cannot be rendered. Hewson v. Tootle, 72 Mo. 632. If plaintiff's position is correct, an interplea will always be in vain--will be a pursuit after a thing which has effectually escaped. (5) Levy means actual seizure of the personal property; as there had been such seizure by the attachment, no levy was necessary under the execution. State to use, etc., v. Doan, 39 Mo. 49. Under these circumstances the officer could not be sued for failure to levy. Whether it was a proper case for an officer to sell should have been tested by an application to the circuit court for an order to sell.

SHERWOOD, J.

Action on the bond of Ranson, as constable, for failure to execute and levy a certain execution in favor of relator and against Joseph Cochran. The facts in the case appear in the following agreed statement of facts:

“1. That on August 21, 1875, the relator commenced a suit, by attachment, against one Joseph Cochran before Langston Bacon, a justice of the peace in and for Kaw township, Jackson county, Mo., in which suit a writ of attachment was duly issued and directed and delivered to Thomas Fitzpatrick, the then constable of Kaw township, and which said writ of attachment was duly served personally on said Joseph Cochran, and by attaching the following goods and chattels as the property of said Cochran, to-wit: One walnut bedstead, one walnut bureau (marble top), one marble top washstand, one oak bedstead, one oak marble top bureau, and one oak washstand.

2. That on September 21, 1875, the said attachment writ having been duly transferred by change of venue from said Langston Bacon to W. H. Sutton, a justice of the peace in and for said Kaw township, one S. A. Cochran interpleaded for the goods attached, and on September 21, 1875, judgment was duly rendered thereon against said interpleader and in favor of said relator, from which said judgment by said Sutton, justice, the said interpleader on September 24, 1875, duly appealed to the Jackson county special law and equity court, where the judgment of said justice on said interplea was duly affirmed on May 23, 1877.

3. On October 5, 1875, the defendant Ranson, having been duly appointed constable of said Kaw township to succeed said Thomas Fitzpatrick, together with defendants, Lucius Cary and Aimie Guinotte and Bernard Donnelly, as his sureties, duly executed and delivered his official bond, a true copy of which bond, and of the approval of the county court endorsed thereon, duly certified by Wm....