Stewart v. Leonard

• Decision Date: 02 November 1907
• Citation: 68 A. 638,103 Me. 128
• Parties: STEWART et al. v. LEONARD, Deputy Sheriff.
• Court: Maine Supreme Court

68 A. 638

103 Me. 128

STEWART et al.

v. LEONARD, Deputy Sheriff.

Supreme Judicial Court of Maine.

Nov. 2, 1907.

Exceptions from Supreme Judicial Court, Somerset County.

Action by David D. Stewart and another against Abial E. Leonard, deputy sheriff. Judgment for defendant on the report of the referee, and plaintiffs except. Exceptions sustained, and judgment directed for plaintiffs.

Action against the defendant, a deputy sheriff, for failure to serve an execution running against the body by arrest of the judgment debtor.

The action was brought in the Supreme Judicial Court, Somerset county, and by agreement of the parties and by rule of court duly issued was referred "to the determination of Judge Lucilius A. Emery to be heard on legal principles, the report of whom to be made as soon as may be, and judgment thereon to be final; and if either party neglect to appear before the referee, after due notice given, then the said referee to proceed ex parte."

A hearing was had before the referee, who duly filed his report (The report is stated in full in the opinion.) Upon this report, at the March term of said Supreme Judicial Court, the presiding justice ordered judgment for the defendant. Thereupon the plaintiffs took exceptions.

The case appears in the opinion.

Argued before WHITEHOUSE, STROUT, PEABODY, CORNISH, and KING, JJ.

D. D. Stewart, for plaintiffs. Joseph B. Peaks and Walton & Walton, for defendant

KING, J. Action against a deputy sheriff for failure to serve an execution by arrest of the debtor.

The referee, to whom the cause was referred by agreement and by rule of court, made the following report:

"Pursuant to the foregoing rule I gave the parties due notice of the time and place fixed for hearing the said cause, at which time and place the parties and their counsel appeared before me, and I fully heard their evidence and arguments, and have maturely considered the same, and now make the following report and award:

"I find facts as follows: September 1, 1900, the plaintiffs, through their attorney, Mr. Brown, sent by mail to the defendant, then a deputy sheriff at Milo, in Piscataquis county, an execution running against the body of one Parker, then a resident of another state, but commorant in said Milo, issued from the Supreme Judicial Court for Somerset county on a judgment recovered in said court. No direction to arrest the debtor, nor any other direction, was indorsed on the execution itself; but in a letter, sent with the execution in the same envelope, Mr. Brown, as attorney for the plaintiffs, gave explicit written directions to the defendant to arrest the debtor at once. The defendant received the execution and the letter the same day. The next day he went to the debtor, and showed him the execution and the order to arrest, and asked him to pay the amount. The debtor claimed that the judgment could not be valid, as he had been duly discharged in insolvency. After some conversation they went to the office of Mr. Durgin, the attorney of the debtor. Mr. Durgin also claimed there had been a discharge in insolvency, barring the debt. They (the debtor and Mr. Durgin) desired the defendant to delay serving the execution and allow them a reasonable time in which to obtain evidence of the discharge, or a supersedeas, before making the arrest. To this the defendant consented, and made no arrest. The debtor some two weeks afterward left the state, leaving no property in the state. Learning of this, the defendant, having retained the execution till then, handed it back to Mr. Brown September 18th.

"No supersedeas was obtained, nor was any petition for review brought; the attorney concluding there was no ground for it. The judgment and execution were valid, and I overrule all the other excuses of the defendant, and find the defendant is liable for not serving the execution, unless the fact that the written direction for arrest contained in the letter was not indorsed upon the execution itself is a legal excuse under the following circumstances, viz.:

"The defendant did not return the execution to the plaintiffs or their attorney for such indorsement; nor did he apprise any of them of the lack of such indorsement; nor did he give any other reason for not serving it other than that the debtor claimed the judgment was wrong. He retained the execution, as already stated, till September 18th, after the debtor had left the state. The plaintiffs' attorney supposed the debtor had been arrested as ordered.

"It was conceded at the hearing, and I find, that the debtor had sufficient means, and that, if the defendant is liable upon the foregoing facts for not serving the execution as directed in the letter, the damages are the amount of the judgment and interest.

"I submit to the court the question of the defendant's liability upon the foregoing facts. If he is liable, judgment is to be for the plaintiffs for the sum of $117.14, with interest thereon from October 3, A. D. 1889, and for costs of reference, taxed at $5, and costs of court, to be taxed by the court. If he is not liable under the facts stated, then judgment is to be for the defendant for costs of reference, taxed at $5, and costs of court, to be taxed by the court.

"December 27, 1905."

Upon the report of the referee the court below ordered judgment for the defendant. The case is before the law court on plaintiffs' exceptions.

Defendant's counsel has urged upon us the consideration that the facts found by the referee do not support the declaration. That question,...