State v. Penner
| Decision Date | 09 October 1880 |
| Parties | State of Minnesota v. John J. Penner and another, Executers |
| Court | Minnesota Supreme Court |
In an action brought by the state against the Pine City Lumber Company, a writ of attachment was issued and delivered to one J. C. Becht, who was then sheriff of Ramsey county, who, by virtue thereof, on January 17, 1877, levied upon and took into his possession a quantity of lumber and other personal property belonging to the company. On February 26, 1877, an execution against the lumber company on a judgment in favor of one Merriam was placed in the hands of Becht as sheriff who levied such execution on the same property before attached by him. The state having recovered judgment in its action against the lumber company, execution was issued thereon, and placed in the hands of Becht, as sheriff, on January 28, 1878. On the same day he made return to the writ of attachment as follows: On February 5, 1878, Becht as sheriff, under the execution in favor of Merriam, sold the property attached and levied on, and paid over the amount realized, less his fees, to Merriam's attorneys, and on February 13, 1878, returned that execution satisfied to that extent.
Becht having afterwards died, the state presented to the commissioners on his estate a claim for the money so paid over by him on the Merriam execution. The claim was allowed and Becht's executors appealed to the district court for Ramsey county. At the trial in that court, before Wilkin, J., the plaintiff proved the facts above set forth, and also an endorsement in Becht's handwriting on the execution in favor of the state, as follows: "Received for service January 28, 1878, John C. Becht, sheriff of Ramsey Co., Minn." The plaintiff then put in evidence (under objection and exception) an endorsement on the execution, in the handwriting of one of Becht's deputies since deceased, but not signed: "I John C. Becht, sheriff of Ramsey county, do hereby certify that under and by virtue of a writ of attachment duly issued and to me delivered in the within-entitled action, on the 17th day of January, 1877, I did attach and levy upon, as the property of the within-named defendant, the Pine City Lumber Company, the following described personal property." [Here follows a description of the property identical with that in the return to the writ of attachment.] "I further certify that I have received the within execution on the 28th day of January, 1878, and that under and by virtue of the said execution I now hold and retain my levy on said property and all my rights acquired therein by virtue of said writ of attachment."
The plaintiff having rested its case, the defendant offered to prove that in December, 1877, the attorney general, with full notice of the levy and intended sale under the Merriam execution, notified the sheriff that the levy and lien under the attachment of the state were abandoned, released and waived by the state; and that the sheriff, relying on such notice, thereupon proceeded to sell under the Merriam execution and to pay over the proceeds to Merriam's attorneys. The proof offered was excluded on plaintiff's objection, as incompetent and immaterial, and thereupon the court instructed the jury to return a verdict for the plaintiff. A new trial was refused, and the defendants appealed.
Order denying a new trial affirmed.
H. J. Horn, for appellants.
The order or notification, offered to be proved, given to the sheriff by the attorney general -- the attorney of record for the state -- directing or notifying him to abandon or release the levy or that it had been abandoned or released, would when acted on by the sheriff, operate as an abandonment of the levy, or, at least, would postpone the lien of the state to that of Merriam, the junior lien creditor. Freeman on Executions, § 271; Ross v. Weber, 26 Ill. 221; Truitt v. Ludwig, 25 Pa. St. 145; Kaufelt's Appeal, 9 Watts, 334; Eberle v. Mayer, 1 Rawle, 366; Kellogg v. Griffin, 17 John. 273; Knower v. Barnard, 5 Hill, 377; Michie v. Planters' Bank, 4 How. (Miss.) 130; Wise v. Darby, 9 Mo. 131; Lowick v. Crowder, 8 B. & C. 132.
The effect of a sheriff's return upon his writ is held by this court to be conclusive upon parties and privies, and prima facie upon strangers, and not liable to impeachment, except in direct proceedings to which the officer is a party. Tullis v. Brawley, 3 Minn. 277. See, also, Browning v. Hanford, 7 Hill, 120; Whitehead v. Keyes, 3 Allen, 495. To a certain extent the return becomes part of the record of the suit, and so far concludes parties and privies for that reason. The sheriff, however, is not a party to the record, and when he is concluded it is by way of estoppel. Crocker on Sheriffs, § 46; Bigelow on Estoppel, 495; 2 Greenl. Ev. § 587; Stimson v. Farnham, Law Rep. 7 Q. B. 175. It is therefore held that his return showing the receipt of money on an execution will conclude him as to the fact that the money was paid to him, but not from showing the execution creditor is not legally or equitably entitled to it. 2 Greenl. Ev. § 588. He may show that another than the execution creditor is entitled to the money, as owner of the goods sold, or assignee in bankruptcy of the debtor, or as a prior lien creditor, or as a junior execution creditor who has obtained priority by matter in pais, as by the laches or the direct act of the senior creditor. And the sheriff would be obliged to pay the money to a creditor who was in fact entitled to it, of whose rights he had notice, and could not be held liable for paying it to the person entitled to it. Unless directed otherwise by the court, the sheriff must make the distribution, and, in doing so, can only be liable in case he pays to a person not entitled to receive the money. Freeman on Executions, § 446; Crocker on Sheriffs, § 424; Newland v. Baker, 21 Wend. 264; Stimson v. Farnham, Law Rep. 7 Q. B. 175; Learned's Adm'x v. Bryant, 13 Mass. 223; Ross v. Weber, 26 Ill. 221; Brydges v. Walford, 6 Maule & Sel. 39; Fuller v. Holden, 4 Mass. 498; Canada v. Southwick, 16 Pick. 556; Chapman v. Smith, 16 How. 114. To conclude the sheriff, therefore, by his return, it must have contained a statement of fact upon which the state has relied and so acted that it will be prejudiced if the sheriff is allowed to deny the truth of the statement. Bigelow on Estoppel, 495; Stimson v. Farnham, Law Rep. 7 Q. B. 175; Barker v. Benninger, 14 N.Y. 270; Dezell v. Odell, 3 Hill, 215; Caldwell v. Augur, 4 Minn. 156 (217;) Castner v. Symonds, 1 Minn. 310 (427;) Com'rs of Hennepin Co. v. Robinson, 16 Minn. 381; Northern Line Packet Co. v. Platt, 22 Minn. 413. But in this case there is no proof showing that the state relied or acted on the return; and the fact that the return was filed after the money is paid is proof presumptive, at least, that the state did not rely on it.
Upon the facts offered to be proved, the state would be estopped, having notified the sheriff of the release and abandonment of the attachment levy, and the sheriff and Merriam having both acted on this statement of the state, in the sale and the payment and receipt of the money. Com. v. Andre, 3 Pick. 224; Carver v. Astor, 4 Pet. 1, 87; Branson v. Wirth, 17 Wall. 32, 42; Nieto v. Carpenter, 7 Cal. 527; Magee v. Hallett, 22 Ala. 699; St. Paul, S. & T. F. R. Co. v. First Div., etc., R. Co., 26 Minn. 31; Bigelow on Estoppel, 262, 263. As to the effect of instructions by plaintiff's attorney to the sheriff, see Rice v. Wilkins, 21 Me. 558; Stevens v. Colby, 46 N.H. 163; Simmons v. White, 21 La. An. 590; Willard v. Goodrich, 31 Vt. 597; Strong v. Bradley, 13 Vt. 9; Waterman v. Merrill, 33 N. J. Law, 378.
The return on the attachment does not show that the levy continued in force, or that it was in force at the time of the sale, or when the money was paid over, or that it ever was a prior lien. The return merely shows that the attachment was levied on January 17, 1877. It does not assert that the property continued in the sheriff's custody, or that the levy remained in force, or that anything further was done under it. Gen. St. 1878, c. 66, § 159, relied on by plaintiff, provides that "when the writ of attachment is fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action...
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