Vaughn v. Fisher

• Decision Date: 02 July 1888
• Citation: 32 Mo.App. 29
• Parties: JOHN VAUGHN, Respondent, v. PETER FISHER, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 29

JOHN VAUGHN, Respondent, v. PETER FISHER, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Clinton Circuit Court. --HON. JAMES M. SANDUSKY, Judge.

AFFIRMED.

The case is stated in the opinion.

Thos. E. Turney, for the appellant.

(1) Defendant's instruction numbered one should have been given. Not a single allegation in the petition constituting a cause of action against the defendant had been proved. Waldhier v. Railroad, 71 Mo. 514; Carson v Cummings, 69 Mo. 325; Russell v. McCartney, 21 Mo.App. 544; McCray v. Lowry, 25 Mo.App. 247; R. S secs. 3511, 3586. (2) The court erred in excluding the testimony of Peter Fisher. The attaching creditor is not liable for the act of the officer unless he has in some manner interfered, or, unless after knowledge of the illegal act of the officer he approves, ratifies or adopts it. The testimony went to the very heart of the issue made by the pleadings. Drake on Attachment, [2 Ed.] sec. 196; Lovejoy v. Murray, 3 Wall. 9. (3) The defendant's instructions numbered two and three should have been given. The order of sale was admissible in evidence only as going to show that the defendant adopted the act of the officer in levying upon the property of John Vaughn. But until he or his attorney knew that it was claimed that the property of John Vaughn had been levied on, there could be no adoption of the officer's act. Dameron v. Williams, 7 Mo. 138; Perrin v. Claflin, 11 Mo. 13; McNeely v Hunton, 30 Mo. 332; Welch v. Cochran, 63 N.Y. 181; Lovejoy v. Murray, 3 Wall. 1-9; Freeman on Execucutions, sec. 273; Drake on Attachments [2 Ed.] sec. 199. (4) The defendant's fourth and fifth instructions should have been given. Under the uncontroverted facts there could be no recovery against the officer making the levy; and if not against the officer there can be none under the petition in this case against the defendant. Tufts v. McClintock, 28 Me. 428; Lewis v. Whittemore, 5 N.H. 364; Shumway v. Rutter, 8 Pick. 443. (5) The court erred in giving the instructions prayed by the plaintiff. Oeter v. Aehle, 31 Mo. 380; R. S., secs. 424, 425.

Roland Hughes and J. F. Harwood, for the respondent.

(1) The petition is good after verdict. R. S., sec. 3582. (2) It is admitted that the defendant, by his attorney, went into court and procured an order to sell all the property attached, no matter to whom it belonged. This was a ratification of the act of the officer in making the levy. Patterson v. Fole, 25 N.W. 677. (3) It will not be denied that had Fisher directed the officer to sell the property under an execution he would be liable. McNeeley v. Hunton, 30 Mo. 332. (4) The order to sell had the same force as an execution. Belkin v. Hill, 53 Mo. 492. This was an execution sale. Plaintiff in execution gave the officer an indemnifying bond. Belkin sued the officer and the plaintiff in the execution in trespass, ignoring the bond. The court held that plaintiff, by giving the bond, ratified acts of officer. Perrin v. Claflin, 11 Mo. 13. The court say: " One who procures an order to be entered which directed the sale of the property and the execution to be issued, upon which it was sold, is responsible for its sale, and by these acts ratifies the act of the officer in levying the attachment."

Thos. E. Turney, in reply.

(1) The respondent seems to misapprehend the first point made in appellant's brief. There is no objection to respondent's petition. It was and is conceded that the petition sufficiently states a cause of action against appellant. The point made was that the cause of action alleged was not proved. The petition charges that the defendant, by his servants and agents, on the twenty-ninth day of December, 1884, wrongfully took thirty acres of corn and forty hogs, the property of plaintiff, from plaintiff's possession and converted them to his own use. Not one of these allegations was proved; and the defendant offered to disprove them in their entire scope and meaning, but was not permitted to do so. This, it is insisted, is somewhat worse than an entire failure of proof. The instruction prayed by the respondent and given by the court ignores entirely the issues made by the pleadings, and authorizes a recovery upon matters not in issue; and for that reason not contested on the trial. If such a proceeding is sustained, then, in justice to litigants, the law requiring formal pleadings should be repealed. (2) The respondent says that the evidence was not demurred to. If it is meant by this that no objection was made to the introduction in evidence of the order of sale, I have only this to say: This evidence was not objected to because it was supposed that it would be followed by some evidence that appellant or his attorney knew that John Vaughn claimed to own part of the property. It was no more objectionable than all the evidence that preceded it. In the absence of such evidence of knowledge, this order amounted to nothing, as all the other evidence amounted to nothing. No more and no less. (3) It is not admitted that " defendant, by his attorney, went into court and procured an order to sell all the property attached, no matter to whom it belonged." (4) If it is claimed that the order read in evidence affords conclusive evidence of a ratification by appellant of an illegal act of the officer, notwithstanding appellant conclusively proves that he did not know that an illegal act had been committed, then a meaning is claimed for the word different from any heretofore given it by lexicographers; different, too, from any that can be found in our decisions. (5) It is denied that Fisher would be liable if he had an execution issued against a named defendant, and the officer without Fisher's instructions and without Fisher's knowledge had levied upon the goods of a stranger. It is admitted that Fisher would be liable if in the case named he had taken upon himself the duties of the officer and directed him to levy upon the stranger's property; or, if after knowledge that he had levied upon the stranger's property he had done any act which would obstruct the stranger's efforts to recover it. In other words it is denied that the officer is the agent of the plaintiff in a writ of attachment or execution. It is admitted that he may make him such, and himself liable as a co-trespasser with the officer, but it is claimed that he cannot do so involuntarily and while ignorant of the fact that it is claimed that the officer has exceeded the commands of the writ. These questions, however, will properly come before this and the trial court when the pleadings put them in issue. Just now we are defending a suit in which it is alleged that the defendant, by his servants and agents, took the plaintiff's property, from the plaintiff's possession, and converted it to his own use.

HALL J.

This was on an action for the conversion of certain personal property of the plaintiff.

The defendant, in October, 1884, instituted an attachment suit against Joseph Vaughn. Under the writ of attachment the sheriff levied on the property in controversy, which, as all the evidence shows, was the plaintiff's property. It is claimed by defendant that the property was apparently in the possession of Joseph Vaughn, and was so commingled with other similar property of Joseph Vaughn as to be subject to levy under the writ of attachment without notice by the plaintiff of his ownership, and identification by him of his particular property.

The plaintiff gave no such notice to the sheriff making the levy, either at the time of the levy or afterwards. The sheriff's term of office expired while the property was still in his custody, and the property was taken possession of by his successor in office.

Afterwards the circuit court on motion of the defendant's counsel (the defendant being plaintiff in the attachment suit) made the following order:

" Now at this day, December 10, 1884, comes the plaintiff herein by his attorney and informs the court that in this action, by virtue of a writ of attachment issued out of the office of the clerk of this court, the sheriff has seized and levied upon certain horses, cattle and hogs, and also upon corn and other farm products, that the keeping of said live stock is attended with great expense and that the crops seized and levied upon are liable to great waste and loss, and moves the court to grant an order to the sheriff to sell the same, and the court being fully advised in the premises sustains the motion, wherefore it is ordered by the court

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