Strandberg v. Stringer

• Decision Date: 25 June 1923
• Docket Number: 17149.
• Citation: 125 Wash. 358,216 P. 25
• Parties: STRANDERG v. STRINGER, Sheriff, et al. King County.
• Court: Washington Supreme Court

216 P. 25

125 Wash. 358

STRANDERG v. STRINGER, Sheriff, et al. King County.

No. 17149.

Supreme Court of Washington, En Banc.

June 25, 1923

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action for conversion by Alfred Strandberg against John Stringer, as Sheriff of King County, and the National Surety Company. Judgment for defendants notwithstanding a verdict for plaintiff, and plaintiff appeals. Affirmed.

Holcomb J., dissenting.

Lundin & Barto, of Seattle, for appellant.

Wright Kelleher, Allen & Helen, of Seattle, for respondents.

FULLERTON J.

On February 11, 1920, the appellant, Strandberg, being then indebted to the Mount Vernon National Bank in the sum of $1,600, represented by two promissory notes, executed and delivered to the bank a chattel mortgage upon a certain lot of potatoes then in dry storage at the Belle Street Dock, in Seattle, King county, Wash. The mortgagor duly filed the mortgage for record with the county auditor of King County on February 13, 1920. Some few days after the execution of the mortgage, the mortgagor left the state of Washington for the territory of Alaska, and did not return to the state until May 14, 1920. In the meantime the mortgage debt matured, and the mortgagee, on April 16, 1920, began foreclosure proceedings under the mortgage foreclosure statute by the procedure therein defined as notice and sale. The notice was placed in the hands of the respondent Stringer, who was then sheriff of King county, who executed it by serving a copy of the notice on the person with whom they were in storage, and advertising and selling the property as like property is sold under execution.

The appellant, some time after his return to the state, began the present action against the sheriff and his official bondsman to recover the value of the potatoes, charging the sheriff with a conversion. After issue joined, a trial was had before a jury, who returned a verdict in favor of the appellant for $2,400, the difference, evidently, between what the jury conceived to be the value of the potatoes and the mortgage and storage liens thereon. After the return of the verdict the sheriff and his bondsman moved for judgment notwithstanding the verdict. This motion the trial court granted, entering a judgment of dismissal and for costs against the appellant. The appeal is from this judgment.

The appellant sought recovery on the theory that the sheriff had improperly executed the notice and sale. It is conceded that the mortgagor was not in the county of King and was not a resident thereof at the time the foreclosure proceedings were had, and that no personal service could be had upon him in King county. But it is contended that the sheriff should have made a return of 'not found,' or made some form of certificate showing that personal service on the mortgagor could not be had before proceeding with the sale, and that his failure so to do renders the proceedings void.

The statute relating to the foreclosure of mortgages upon personal property is found at sections 1104-1110 of Remington's Compiled Statutes, and reads as follows:

'Sec. 1104. Any mortgage of personal property, when the debt to secure which the mortgage was given is due, may be foreclosed by notice and sale as herein provided; or it may be foreclosed by action in the superior court having jurisdiction in the county in which the property is situated.

'Sec. 1105. The notice must contain a full description of the property mortgaged, together with time and place of sale also a statement of the amount due, and must be signed by the mortgagee or his attorney.

'Sec. 1106. Such notice shall be placed in the hands of the sheriff or other proper officer, and shall be personally served in the same manner as is provided by law for the service of a summons: Provided, that if the mortgagor cannot be found in the county where the mortgage is being foreclosed, it shall not be necessary to advertise the notice or affidavit in a newspaper; but the general publication directed in the next section shall be sufficient service upon all the parties interested, and such notice shall be sufficient authority for the officer to take such property into his immediate possession.

'Sec. 1107. After notice has been served upon the mortgagor, it must be published in the same manner and for the same length of time as required in cases of the sale of like property on execution, and the sale shall be conducted in the same manner.

'Sec. 1108. The purchaser shall take all interest which the mortgagor had in the said mortgaged property upon which the said mortgage operated.

'Sec. 1109. The officer conducting the sale shall execute to the purchaser a bill of sale of the property, which bill of sale shall be effectual to carry the whole title and interest purchased, and if any balance of the purchase price remain, it shall be disposed of in the same manner as surplus proceeds of sales are on execution.

'Sec. 1110. The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested by any person interested in so doing, and the proceedings may be transferred to the superior court, for which purpose an injunction may issue if necessary.'

It will be observed, from a reading of the statute, that no provision is made therein for a return or certificate of 'not found.' There is no person, body, or place named therein to whom such a return can be made, or with whom such a return can be filed. A 'return,' in legal parlance, is a statement in writing, made by a ministerial officer, of the manner in which he has executed a process placed in his hands for execution. It is necessary in any instance, and is evidence of the officer's acts simply because the law makes it so. If the law does not require such a return, none need be made, even on the execution of writs of court. Nor is an unauthorized return evidence of the facts recited therein; it is nothing more than the private memoranda of the person making it, and can be used as evidence only as other private memoranda can be used. The acts of the sheriff in executing a writ, when called in question, must be proved as any other disputed matter of fact is proved.

In Crocker on Sheriffs (3d Ed.) § 47, it is said:

'But if the process be not returnable process, that is where the officer is neither required nor authorized to make return of his doings thereunder; no return to any such process will be received, either for the officer or for or against any party to the process. And so where the process is returnable process, if the officer make return of the performance of acts beyond his duty under such process, such return will be invalid as to such parts, and will not be evidence; though the addition of such parts will not render the whole return void, but it will be good to the extent he was authorized to make return. Though such return will be invalid as to others, it may be used as an admission as against the sheriff in a proper case. Thus, the sheriff cannot make his return evidence that he has paid money, levied under an execution, to the plaintiff, yet such return may be used against him in an action for not paying over the money. Nor can the officer's return be evidence of any fact which would go to excuse him for not having performed his duty, except as has been seen, such facts be official acts done in the ordinary and usual course of proceedings under such process. Thus a return to an execution that goods levied on had been casually destroyed by fire after the levy, will not be competent evidence for the sheriff in an action against him for not collecting the moneys on such execution. When such fact is a good defence, as it will be, where the sheriff has taken the property into his possession, and it is destroyed by fire, or is otherwise lost, without fault on his part, it must be proved in the usual mode. And so a return of rescue, in the cases where such fact will not excuse the officer, as where the prisoner was under arrest on final process, or was rescued or escaped after being committed to jail, not in consequence of a fire, the act of God, or of the public enemies, it will not be evidence for the officer. And so of a return of sickness, as an excuse for not discharging his duty; or that he had lost the process, or the like, and therefore could not return it. These facts cannot be evidenced by the return, for there is no law authorizing such return. They

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