State ex rel. O'Bryan v. Koontz

• Citation: 83 Mo. 323
• Parties: THE STATE ex rel. O'BRYAN v. KOONTZ et al., Plaintiffs in error.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

83 Mo. 323

THE STATE ex rel. O'BRYAN

v.KOONTZ et al., Plaintiffs in error.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

T. B. Wright and Draffen & Williams for plaintiffs in error.

The motion to strike out part of defendant's answer, should have been overruled by the court. Where an officer has reason to doubt whether the goods upon which he is directed to levy an attachment are the property of the defendant in the writ, he may insist on being indemnified for any mistake he may make in taking goods not the property of the debtor, and upon the refusal of the plaintiff to give such indemnity, the officer may refuse to proceed with the levy. This was the common law and there is no statute abrogating it in this state. Bond v. Ward, 7 Mass. 123; Sibley v. Brown, 15 Maine 185; Raulett v. Blodgett, 17 N. H. 298; Smith v. Cicotte, 11 Mich. 383; Chamberlain v. Beller, 18 N. Y. 115; Shriver v. Harbaugh, 37 Pa. St. 399; Drake on Attachment (3rd. Ed.) § 189. (2) The court committed manifest error in declaring as a matter of law that because Charles Kaufman owed O'Bryan $80, therefore the gift of the mule to Fritz Kaufman was void. “A voluntary conveyance is not per se fraudulent as to creditors. Whether it be fraudulent is a question of fact for the jury.” Dygert v. Remerschnider, 32 N. Y. 629; Baker v. Welch, 4 Mo. 484; Eddy v. Baldwin, 32 Mo. 369; Gamble v. Johnson, 9 Mo. 605. (3) Instructions numbered 8, 9 and 10 asked by defendants should have been given by the court.

Cosgrove, Johnston & Pigott for defendant in error.

(1) The motion to strike out part of defendant's answer was properly sustained by the court. After the attachment it was for the sheriff to determine at his peril whether or not the property belonged to the defendant in the writ. State, etc., v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Langdon, 57 Mo. 353; Wadsworth v. Walliker, 45 Ia. 397; Cooley on Liability of Public Officers, p. 20; 2 Thompson on Negligence, p. 825; Chamberlain v. Beller, 18 N. Y. 115. As to the rule at common law in cases of attachment, see Gwynne on Sheriffs, 260; Sanderson v. Baker, 3 Wils. 316; Curtis v. Patterson, 8 Cow. 65; Bayley v. Bates, 8 Johns. (N. Y.) 185. (2) The objection to plaintiff's fourth instruction is not well taken. (3) It was not necessary for plaintiff to go through the idle form of having an execution issued and placed in the hands of a constable to be returned nulla bona, before bringing his suit for damages. The moment the constable refused to perform his duty and released the property which was looked to for the payment of plaintiff's debt, he became liable on his bond for the damages resulting therefrom, and the plaintiff was not required by law or reason to give the constable another opportunity to neglect his duty.

PHILIPS, C.

This is an action against the defendant, Koontz, as constable, on his official bond for wrongfully releasing property seized under a writ of attachment in favor of the relator, J. H. O'Bryan. The facts, briefly, are, that one Charles Kaufman owed said O'Bryan the sum of $80. Said Kaufman lived in the neighborhood of Tipton in Moniteau county. He seems to have sold out everything there save a horse and mule and two or three wagons, which horse and mule and a wagon, perhaps, he took with him to the town of Boonville in Cooper county. On his arrival there O'Bryan sued him on said debt, by attachment. The writ was placed in the hands of Koontz as constable of the township for service. O'Bryan pointed out said property, with other machinery, etc., connected with a butcher shop in Boonville, and directed the constable to levy on it; which the constable did. He removed the horse, mule and wagon to a livery stable in town. The property so seized was claimed by the sons and wife of Kaufman, respectively, who made claim thereto in writing and delivered the same to Koontz, who demanded of O'Bryan an indemnifying bond. On failure of O'Bryan to give such bond, the constable released the property to the claimants, and made return of the writ accordingly.

O'Bryan, after obtaining judgment in the justice's court for his debt, brought this action against Koontz and his sureties on his official bond for damages.

The answer of defendants, after admitting the attachment proceedings, the seizure of the property under the writ as aforesaid, and the obtaining judgment by O'Bryan for his debt, denied that the property so seized belonged to said Charles Kaufman, or that it was lawfully subject to such seizure for the debt of said Charles. It further alleged that after plaintiff so obtained his judgment he took no further steps to enforce the same by having execution issued thereon against Kaufman, and levying on said property as he might have done. And it pleads specially that he was directed by plaintiff, on receipt of the writ of attachment, to levy the same on the property in question, which property was then in the possession of other parties, and being in doubt as to his right to seize the same, he demanded of the plaintiff an indemnifying bond; that plaintiff agreed to give the same, and thereupon he proceeded with the writ and seized the said property; that said claimants to said property thereupon gave him written notice of their claim and demanded restitution of their property, of which fact he informed plaintiff, and demanded that he protect defendant by a bond of indemnity. On plaintiff's failure and refusal to so do he released said property to said claimants, who he avers were the rightful owners.

To the portion of said answer setting up the demand for indemnity and plaintiff's refusal to give it, the plaintiff demurred, which the court sustained. The jury found for the plaintiff the amount of his debt, with interest and costs, for which the court entered judgment. Defendant, after an ineffectual motion for new trial, has brought the case here on writ of error.

I. The first and controlling question for determination, on this record, is the right of the constable, under the writ of attachment, on notice of claim of a third party to the property about to be seized or actually seized, to demand of the plaintiff in the action a bond of indemnity, and, in default of the plaintiff to furnish such bond, to refuse to execute the process, or, having seized the property, to release it to the claimant. This is an important matter in practice, and does not appear to have been directly presented hitherto to this court. This is, perhaps, attributable to the fact that such right of the officer has not hitherto been supposed to exist in this state. The legislature has made specific provision in the case of executions issued on general judgment; but this does not apply to the proceeding by attachment. “Our statute provides no indemnity for the sheriff in such (attachment) cases.” State ex rel. v. Fitzpatrick, 64 Mo. 185. If, therefore, the right of a constable, or sheriff, exists to demand the indemnity, it must rest on common law principles alone. By the common law there seem to have been two methods open to the officer, where he was in real doubt as to his right to seize and hold property when claimed by a third party. Being charged by the command of the writ to go forward, he was exposed to two hazards. If, under a writ to seize the goods of A, he should seize those of B, he was liable to an action of tort by B. If, on the mere apprehension that the goods belonged to B, he should return the writ nulla bona, he was liable on his bond to an action by the plaintiff in the writ for failure of official duty.

The first mode recognized by the common law practice for his protection, in such conjuncture, was to demand indemnity of the plaintiff for the seizure and sale, and of the claimant for releasing it. The constable in this case made demand of the plaintiff in the writ only. In the event both parties refused to give the indemnifying bond, the officer might make application to the court out of which the writ issued. It was discretionary with the court whether it would interfere; but the courts nearly always acted when satisfied of the bona fides of the officer's doubts, that they were based on reasonable grounds, and that he was not in collusion with the defendant in the writ. Unless the plaintiff would then indemnify the officer, the court would postpone the return day of the writ, until the officer had further time for investigation, and if the reasonable grounds of apprehension continued the court would defer the return indefinitely unless the plaintiff complied with such reasonable request.

The other mode was for the officer, under a writ of proprietate probanda, to impanel a jury to inquire into the prima facie title to the property; and if the jury found in favor of the claimant the officer might release to him the property, and make return of nulla bona, unless the plaintiff gave him the indemnity. This finding of the jury would be a justification of the officer for making a return of nulla bona. Farr v. Newman, 4 T. R. 633; 4 T. R. 648; Wells v. Pickman, 7 T. R. 177; see Gwynne on Sheriffs, 260. But it was afterwards denied by the English courts that such finding by the inquisition would constitute matter of defence by the officer when sued for a false return. Latkaw v. Eamer, 2 H. Blackstone 437; Glossop v. Pole, 3 Maule & Sel. 176. The common law practice of summoning a jury to pass on the probable title to the property seized was early adopted by the courts of New York, and has since been pursued there. Bayley v. Bates, 8 John. 188; VanCleef v. Fleet, 15 John. 150; Curtis et al. v. Patterson, 8 Cow. 65. In this last case the court say: “A plaintiff is never bound to tender an indemnity until a jury have passed on the question of property. A sheriff acts at his peril in making a return of nulla bona under any other circumstances.”

By later statutes in England (1 and 2 William 4 Ch. 58, sec. 6) the remedy by interpleader is...