State ex rel. Gates v. Fitzpatrick

• Citation: 64 Mo. 185
• Parties: STATE TO USE OF J. C. GATES, et al., Respondents, v. THOS. FITZPATRICK, et al., Appellants.
• Decision Date: 31 October 1876
• Court: United States State Supreme Court of Missouri

64 Mo. 185

STATE TO USE OF J. C. GATES, et al., Respondents,

v.THOS. FITZPATRICK, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jackson County Circuit Court.

White & Titus, for Appellants.

It is not made the constable's duty by law to inquire into third persons' rights accruing from legal proceedings, wherein such persons are not parties. (See Armstrong vs. Langdon, 57 Mo. 353.) The defendant from whom goods are taken is the constable's principal, after the goods are ordered to be returned on dismissal of the action. Even were the law otherwise, he could only be liable for a breach of personal duty, and not upon his official bond in this action, there being no such privity between him and the relators as creates such official liability.

The bill of sale in evidence is invalid and should have been so declared by the court, as by its terms there was no delivery of the goods, actual or constructive, they being in the hands of the law. There was no price agreed on and no money paid. (See Brown Frauds, pp. 399, 406; Pluniman vs. Hartiborn, 13 Mass. 87; Bank of Rome vs. Matt, 17 Wend. 554.)

Karnes & Ess, for Respondents.

A sale of goods in the hands of a bailee, when the bailee is notified of it, is good even under tenth section of the fraudulent conveyance act. Much more will it be good where no creditor is complaining. The attachment was settled and the goods belonged to relators.

HOUGH, Judge, delivered the opinion of the court.

This was a suit upon a constable's bond given by the defendant Fitzpatrick as principal, with his co-defendants herein as sureties.

Under a writ of attachment issued at the suit of the Goodyear Rubber Company, on the 24th day of February, 1873, by a justice of the peace in Jackson county, against one Aaron Mann, a certain stock of boots and shoes, the property of said Mann, was levied upon by the defendant Fitzpatrick, as constable.

On the 27th day of February, 1873, Mann executed a bill of sale by which he sold, assigned and transferred said boots and shoes to the plaintiffs herein, subject to said attachment, in payment of a debt due from him to the plaintiffs.

There was testimony tending to show that Fitzpatrick was informed by the plaintiffs of this bill of sale immediately after its execution.

In March, 1873, the attachment suit against Mann was dismissed, and the defendant Fitzpatrick delivered the property attached to Mann or his agents, whereby it was lost to the plaintiffs: and after an unsuccessful attempt to recover the same from Mann, they instituted the present action to recover from the defendant Fitzpatrick and his sureties, the value of said goods.

There was a verdict and judgment for plaintiffs from which the defendants have appealed to this court.

The defendants contend that it was the legal duty of Fitzpatrick, upon the dissolution of the attachment, to return the goods to Mann and not to his vendees--the plaintiffs herein; and that if plaintiffs have any right of action whatever against said Fitzpatrick, it is against him individually, and not upon his official bond.

Several minor objections are urged to the action of the court below at the trial, but the chief question is whether upon the facts stated the plaintiffs can maintain an action on the official bond of the constable?

The attachment did not alter the estate of Mann in the property levied upon, nor take away his right of alienation, and the plaintiff in the attachment suit acquired no property thereby; it only acquired a lien, and Mann could lawfully transfer the property subject to the lien. That he did in fact so transfer it is not disputed. If, after the dissolution of the attachment, the constable had delivered the property attached to the plaintiffs, we think it quite clear that Mann could not have maintained an action against the constable for his failure to return it to him, as the constable could have shown in defense that he, Mann, had sold and transferred the property and thereby parted with his right to the possession. (Drake Attach. § 294, and authorities cited.)

If this position be correct it necessarily follows that it was not the absolute legal duty of Fitzpatrick to return the property to Mann; for if it was, his delivery of it to another person, although such person might be the true owner, could constitute no defense. But if it was not his official duty to return the property to Mann, after he had parted with his title and right of possession, does it follow that it was his official duty to deliver the property to Mann's vendee? Or was it simply optional with him whether he would do so or not? The statute does not require that any order shall be made, when an attachment is dissolved, for the return of the property attached to the defendant in the attachment. Upon its dissolution the officer becomes a bailee for the defendant, (if he...