Stilson v. Gibbs

• Decision Date: 08 January 1879
• Citation: 40 Mich. 42
• Court: Michigan Supreme Court
• Parties: Eli Stilson v. Charles Gibbs

40 Mich. 42

Eli Stilson v. Charles Gibbs

Supreme Court of Michigan

January 8, 1879

Submitted November 21, 1878

Error to Kalamazoo. Submitted November 21, 1878. Decided January 8 1879.

Judgment reversed, with costs, and a new trial ordered.

Edwards & Sherwood for plaintiff in error.

Brown Howard & Roos for defendant in error. An officer levying execution can exercise discretion as to the time, manner, and place of sale. Herman on Executions, pp. 210, 211; Drake v. Mooney, 31 Vt. 617; State v. Morgan, 7 Ired. (N.C.L.), 387; Jones v. Lewis, 8 Ired. (N.C.L.), 70; Penhallow v. Dwight, 7 Mass. 34; Whipple v Foot, 2 Johns. 418; Com. Dig. "Execution" C., 4; Poole's Case, 1 Salk. 368.

Cooley, J. The other Justices concurred.

OPINION

Cooley, J.

The grievance alleged bye the plaintiff in this case is that the defendant took from his possession his crop of wheat, then harvested and in the mow in his barn, and proceeded to thresh the same with an imperfect machine, whereby much of it was wasted, and that he carried away the remainder without leaving sufficient for six months' provision for the plaintiff and his family. When the proof was introduced it appeared that the alleged wrong was the act of one Montague, a deputy of the defendant, who was then sheriff of the county of Kalamazoo, and that what Montague did was under the pretended authority of an execution. No defect in the execution appears, or in the judgment on which it was issued. Objection was made by the plaintiff to their being received in evidence, but as he only connected the defendant with the wrong by showing that Montague acted as defendant's deputy, the execution came in as a part of his own case, and the right of the defendant to show that it issued on a valid judgment followed as of course.

Two questions of fact and one of law were contested on the trial. The questions of fact were whether the wheat was wasted in threshing, and whether the defendant was allowed his statutory exemption of sufficient of the wheat for the provision of his family for six months. Both of these were submitted by the circuit judge to the jury, and were found against the plaintiff.

The question of law was whether Montague had a right to thresh the wheat at all. Montague claimed a right to thresh it under his discretionary authority to put it in the best condition for sale before exposing it at auction under his execution. It appeared that after he threshed it he did sell it at public auction and apply the proceeds.

It is conceded that the officer has a large discretion in determining the time, place and manner in which he shall offer for sale the property levied upon by him; but there is no authority for saying that he may levy on wheat in the mow and proceed to fit it for market before disposing of it under the command of his writ. One reason is that it cannot be supposed necessary; for the value of grain in the sheaf can be estimated with a reasonable degree of accuracy, and the parties concerned are as likely to gain as to lose by exposing it to sale in that condition. But a more important reason is, that the power to proceed and expend money in threshing the grain at the debtor's expense is one liable to great abuses, and cannot be admitted without conceding the principle that the officer...