Taylor v. Wimer

• Decision Date: 31 March 1860
• Parties: TAYLOR, et al., Respondents, v. WIMER, Appellant.
• Court: Missouri Supreme Court

30 Mo. 126

TAYLOR, et al., Respondents,

v.WIMER, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. In order to make a sheriff responsible for a failure to levy an execution, it must be shown that he had knowledge of property owned by the execution debtor subject to execution, and on which he could make the levy, or a knowledge of such facts as should cause him to make exertions to find the property.

Appeal from St. Louis Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

A. M. & S. H. Gardner, for appellant.

I. The court erred in finding that the attorney of plaintiffs directed defendant to levy the execution on goods and merchandise “in the store of Nelson Chamblin.” It does not appear that Chamblin had any interest in the goods in the store pointed out. So also in finding that there was “sufficient” merchandise “belonging” to Chamblin to satisfy the execution. There was no evidence whatever as to the value of the goods; and it was too slight to justify the finding that they belonged to Chamblin. The finding is inconsistent; by finding that Chamblin was insolvent, the court negatived conclusively the allegation that plaintiffs lost their debt by defendant's neglect.

Knox & Kellogg, for respondents.

I. It was the duty of the officer either to levy the execution or give some good reason for not levying it. In this case defendant gave assurance to Mr. Dick that he would make the levy, but neglected to do so. The fact that there was an older execution in defendant's hands is no excuse for neglecting to levy as directed. The execution may have been fraudulent, and was so, as Mr. Dick testifies he had been informed. It does not appear but that the merchandise upon which defendant was directed to levy was sufficient to satisfy all the creditors of Chamblin.

EWING, Judge, delivered the opinion of the court.

This was an action against the sheriff of St. Louis county for failing to execute a writ of fieri facias, in which the plaintiffs claimed three hundred and sixty-five dollars and twenty-eight cents and interest, the amount of an execution against one Nelson Chamblin, which they allege was lost to them by reason of the failure of the defendant to levy said execution, and which the petitioner avers the defendant was requested to levy on the goods and effects of said Chamblin, which he neglected to do; and that the same was delivered to his successor, who returned the execution nulla bona.

The answer denies that the plaintiffs ever requested the defendant to levy on any property of Chamblin, or that they ever designated any property of his on which he could make a levy; or had knowledge of any property belonging to said Chamblin. It further alleges that there were older judgments and executions to which any money coming into his hands would have been applicable, and denies generally any failure or neglect of duty on his part. The cause was tried by the court sitting as a jury, and a judgment rendered for plaintiffs for four hundred and seventy dollars and sixty-nine cents. The appellant filed a motion for review, which was overruled, and the only question for our determination is whether the evidence supports the finding of facts by the court below.

The evidence is that a witness of plaintiffs, F. A. Dick, Esq., their attorney, in the spring of 1854, told the defendant that Chamblin had a stock of goods in his store on the corner of Second and Market streets, and desired him to secure the debt by making a levy. Wimer replied he knew it himself and that it would be all right, and should be attended to. The witness did not go with the respondent to the place, nor offer to go, but was ready to do so, and witness' impression was that a levy would be made. At the time of this conversation the witness did not know of his own knowledge that there was any property at the place named belonging to the said Chamblin, or that he had property of any kind subject to levy under execution. Witness stated his impression was that the goods in the store were covered by a fraudulent execution of...