State v. Dickmann

• Decision Date: 30 April 1907
• Citation: 124 Mo. App. 653,102 S.W. 44
• Parties: STATE ex rel. SCHREIBER v. DICKMANN et al.
• Court: Missouri Court of Appeals

102 S.W. 44

124 Mo. A. 653

STATE ex rel. SCHREIBER v. DICKMANN et al.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. SHERIFFS—ACTIONS ON BOND—EVIDENCE— SUFFICIENCY.

In an action upon a sheriff's bond, evidence held sufficient to establish various breaches thereof.

2. SAME—CONDITION PRECEDENT.

Where a sheriff makes an excessive levy on the property of a surety on an appeal bond,

and fails to notify him of his exemption and homestead rights, and sells his homestead and other property, the surety may maintain an action on his bond for the several breaches thereof, and he is not bound to move the court to set aside the levy and sale.

3. TRIAL—INSTRUCTIONS—SUBMISSION OF ISSUE NOT RAISED BY EVIDENCE.

Where, in an action on a sheriff's bond by a surety on an appeal bond, there was no evidence that it was agreed between the surety and the judgment creditor that the money paid by the surety to the creditor to secure a reconveyance of the surety's property sold under the judgment should be used to satisfy the judgment, nor that such sum was agreed upon as a basis of settlement, nor that the judgment was in fact satisfied by the judgment creditor, an instruction was properly refused that, in no event, could the surety recover the amount of money paid by him on account of the judgment in the suit in which his property was levied on and sold.

4. SHERIFFS—ACTIONS ON BOND—DAMAGES.

Where the fact that an execution sale of land was void as being a sale of a homestead did not appear from any of the proceedings leading up to the execution, nor upon the face of the sheriff's deed, the owner of the homestead was entitled to recover, as against the sheriff making the sale, the reasonable cost of a suit to set aside the sheriff's deed.

5. SAME—DEFENSE.

That a sheriff did not act maliciously in making a wrongful levy and sale under an execution is no defense.

6. SAME—DAMAGES.

The measure of damages for a wrongful levy and sale by a sheriff under an execution is the value of the property wrongfully appropriated.

7. APPEAL—PRESENTATION OF ERROR—GROUND OF DEFENSE.

In an action on a sheriff's bond by a surety on an appeal bond for a wrongful sale of the surety's property under an execution, the point that the sheriff was entitled to set off the amount credited on the execution as realized from the sale against the surety's damages cannot be raised for the first time on appeal.

8. SET-OFF—SUBJECT-MATTER—PARTIES TO.

In an action on a sheriff's bond by a surety on an appeal bond for a wrongful sale of the surety's property under an execution, the sheriff is not entitled to set off the amount credited on the execution as realized from the sale against the surety's damages.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the state of Missouri, on relation of Frederick A. Schreiber, against Joseph F. Dickmann and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Defendant Dickmann was sheriff of the city of St. Louis. The other defendant was surety on his official bond. The petition alleges various breaches of the bond, resulting in substantial damage to plaintiff. We adopt the following statement of some of the facts developed at the trial from plaintiff's printed statement of the facts: "On March 24, 1903, one A. Graber recovered a judgment before a justice of the peace against the Great Western Coffee & Tea Company for $189.81 and costs. The company appealed to the circuit court and Relator Schreiber became surety upon its bond in the sum of $400. On December 14, 1903, this judgment was affirmed in the circuit court, and judgment was there entered against said Great Western Coffee & Tea Company and relator for the original amount, together with costs. On May 3, 1904, an execution was issued upon the judgment, and on May 6, 1904, the sheriff levied the same on three lots of ground belonging to relator, fronting 100 feet each, or 300 feet in the aggregate, on Calvary avenue, in the city of St. Louis, and also upon relator's dwelling house and lot, occupied by him as his homestead, on Armand street, in said city. According to the undisputed evidence, the vacant property was worth at least $3,000, and the homestead at least $4,500. Relator, at the time, was the head of a family, and was entitled, without question, to claim as exempt from levy, seizure, and sale the homestead property, and entitled, moreover, to claim $300 as exempt out of the unimproved property. The sheriff advertised all of this property for sale, and sold it in lump to Graber, the execution plaintiff, for $150. Relator learned of the sale after the purchaser placed his deed of record, and took immediate steps to recover back his property. On the advice of his counsel, he succeeded in securing a quitclaim conveyance from Graber for $500; Graber first demanding $750, but finally accepting the $500. At the time of the levy, and at the time of the sale, the relator was personally known to the sheriff, and his place of business was directly across the street from the sheriff's office. His residence address was written on his qualification, as a surety, before the justice, which qualification was attached to the appeal bond, and was a part of the files in the case out of which the execution was issued." The sheriff's deputy to whom the execution was delivered testified he was unable to find plaintiff, and left a notice in writing at his residence with a female inmate thereof, notifying plaintiff of the issuance of the execution and of his statutory exemption rights. Plaintiff's evidence tends to show no such notice was left with any inmate of his residence at any time by defendant, or any one else. In addition to the $500 paid by plaintiff to Graber for a reconveyance of his property, plaintiff's testimony tends to show he...