Taylor v. Ryan

• Decision Date: 28 May 1884
• Parties: GEORGE E. TAYLOR AND M. I. LEBLANC, PLAINTIFFS IN ERROR, v. PATSEY RYAN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 475

15 Neb. 573

GEORGE E. TAYLOR AND M. I. LEBLANC, PLAINTIFFS IN ERROR, v. PATSEY RYAN, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 28, 1884

ACTION in the district court of Richardson county by Ryan to recover damages arising from the sale of certain property, of which he claimed to be the owner, by Taylor, constable, who had levied on and held it as the property of one Postal, by virtue of an order of attachment issued in a cause wherein LeBlanc was plaintiff and Postal defendant. On the trial before DAVIDSON, J., the defendants asked the court to instruct the jury that if the chattel mortgage referred to in the opinion "was not accompanied by an immediate delivery of the property mortgaged and followed by an actual and continued change of possession thereof, the mortgage would be presumed to be fraudulent, unless it was made to appear that the same was executed in good faith." This request was refused. Verdict for plaintiff and cause brought up on petition in error.

AFFIRMED.

A Schoenheit and E. W. Thomas, for plaintiffs in error, cited Cooley on Torts, 468. Hyde v. Cooper, 26 Vermont 552. Wallis v. White, 15 N. W. R., 767. 1 Greenleaf Ev., § 461.

John Gagnon and C. Gillespie, for defendant in error, cited: Perrin v. Claflin, 11 Mo. 13. Lampsin v. Brander, 11 N. W. R., 95. 1 Greenleaf Ev., § 461. Mathewson v. Burr, 6 Neb. 312. Starkie on Evidence, 210. Jackson v. Campbell, 5 Wend. 572. Sherman v. Crosby, 11 Johns. 70. Derby v. Weyrich, 8 Neb. 177. Noble v. Himeo, 12 Id., 196. Zunkle v. Cunningham, 10 Neb. 164.

OPINION

COBB, CH. J.

The sixth and seventh grounds of error as set out in the petition in error are made the foundation of the first points in their brief, and we will consider them in that order.

6. Because there was no evidence tending to connect defendant LeBlanc with any wrongful act that may have been done by defendant Taylor, and there was no evidence tending to prove that LeBlanc aided, abetted, or advised the constable Taylor to seize or sell the property in controversy.

7. Because there was no evidence as shown by the bill of exceptions to sustain a verdict against defendant LeBlanc, and the verdict should have been set aside as to him.

The plaintiff in his petition charges that the defendant Taylor was at the time, when, etc., a constable; that the defendant LeBlanc sued out an order of attachment in a certain action in the county court of Richardson county, wherein said LeBlanc was plaintiff and one George Postal was defendant, which order of attachment was placed in the hands of said Taylor as constable, and that by virtue of said order of attachment the said constable levied upon and attached the property of the plaintiff; that he notified the defendants severally that the said property was his, etc., and demanded that the same be released from said attachment and returned to him, "which defendant Taylor, with the advice and by the order of defendant LeBlanc, refused;" that on or about the 30th day of December, 1880, the defendant LeBlanc applied for and obtained from the said county court an order for the sale of said property as the property of said George Postal, and the said defendant sold said property on the said order and appropriated the proceeds thereof. The answer of the defendants is joint. They admit the taking by defendant Taylor and the sale of the goods by him under the order of sale as the property of George Postal, and allege that it was the property of said Postal. Upon this defense they went to trial, and the jury found in favor of the plaintiff. The evidence in the case is not quite as satisfactory as might be desired. But are we not to presume that the evidence on the part of the plaintiff was confined to the ownership of the property, for the reason that he considered that to be the only material fact put in issue by the pleadings, and had he not a right to so consider?

In the case of Perrin v. Claflin, 11 Mo. 13, the court held that "where the goods of one are seized under an attachment against another, on an interpleader filed by the owner of the goods so taken, if the plaintiff in the attachment defend the interpleader, it will be evidence of his assent to the seizure by the officer, and such subsequent assent will render the plaintiff liable in trespass." Under our practice the owner of the property wrongfully taken on an attachment against another could not recover his property or the value of it by means of an interpleader, but is obliged to sue in replevin or trespass; yet the principle is the same, and I think that the answer of LeBlanc jointly with Taylor, denying property in the plaintiff and alleging property in Postal, is equivalent to defending an interpleader under the Missouri practice. If the defendant LeBlanc did not take the property or authorize or ratify its taking by the officer Taylor, what difference does it make to him whether it was the property of the plaintiff or not?

In the case of Hyde v. Cooper, 26 Vt. 552, cited by plaintiff in error, the court in the opinion by C. J Redfield say: "As a general rule, perhaps, where the mistake is one of fact, and such as makes the officer a trespasser, and the party knowing all the facts consents to take the avails of a sale, or where he counsels the very act which creates the liability of the officer, he is implicated to the same extent as the officer. But where the party does not direct or control the course of the officer, but requires him to proceed at his peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser even by relation, the party is not affected by it, even when he receives the money which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable unless he consents to the officer's course, or subsequently adopts it." Now the mistake or irregularity which made the officer a trespasser in the case at bar, was the seizing and selling of the property in question. Does not the party adopt "the officer's course" when he comes into ...