Wadsworth & Co. v. Walliker

• Decision Date: 18 September 1879
• Parties: WADSWORTH & CO. v. WALLIKER
• Court: Iowa Supreme Court

2 N.W. 420

51 Iowa 605

WADSWORTH & CO. v. WALLIKER

Supreme Court of Iowa, Des Moines

September 18, 1879

Appeal from Clinton Circuit Court.

ACTION at law upon a sheriff's official bond. The sureties were made defendants, but were not served with notice, and the case proceeded against the sheriff alone, the defendant herein. The petition alleges that plaintiff instituted, and prosecuted to judgment, an action against one Parkinson wherein a writ of attachment was issued, which the defendant levied upon twenty-six boxes of goods, the property of Parkinson. It is averred that after this levy the defendant without any order of court, and without the knowledge or assent of the plaintiffs, wrongfully and unlawfully released the goods from the attachment, after being fully indemnified by plaintiffs, whereby plaintiffs were defeated in collecting their judgment, which remains unpaid. It is also alleged that the goods attached were of sufficient value to satisfy the judgment. The answer denies the allegations of the petition and avers that the goods levied upon by the defendant were not the property of Parkinson, but were owned by another; and that plaintiffs, after being duly required so to do, failed to furnish an indemnifying bond, and that the defendant thereupon lawfully released the attachment. It is further averred that the levy upon the goods was made upon the request of plaintiffs, under an assurance that defendant would be indemnified by plaintiffs to the full extent of the value of the property seized; that defendant had doubts as to the ownership of the goods; that while holding the property defendant was sued by Mortimer Rice for four thousand five hundred dollars, the value of the goods; and that the release of the attachment was made for the reason plaintiffs failed to indemnify defendant, who believed the property belonged to Mortimer Rice. It is also alleged that plaintiff caused Mortimer Rice to be garnished, and that upon a trial in the garnishment proceedings Rice was discharged, and it was adjudged that the title of the goods was in him. The plaintiff filed a replication denying the allegations of the answer not admitting the averments of the petition. It also alleged that Rice's claim to the goods was based upon a fraudulent sale thereof, intended to defeat the creditors of Parkinson. The cause was tried to a jury, and a verdict and judgment were had for plaintiffs. Defendant appeals.

AFFIRMED.

Aylett R. Cotton, for appellant.

Martin, Murphy & Lynch and George B. Young, for appellees.

OPINION

BECK, CH. J.

I. We find an unusual difficulty in our way in this case. Counsel for defendant assigns sixty-five errors upon the record, and urges each in argument. The case really ought to be disposed of in an opinion of ordinary length, but if each assignment of error is considered it will demand more space than the questions discussed really merit. Unless each point made in argument is noticed, counsel will have some grounds of complaint. The only way to dispose of the case to the satisfaction of counsel and ourselves is by classifying the points made in the argument of counsel, and in this manner disposing of many together. Our study of the record satisfies us that this will not be an easy task. We will, however, attempt to perform it as best we can.

II. There was evidence tending to show that defendant had levied, or was about to levy, an attachment in favor of another party upon certain boxes of goods which were at the railroad depot awaiting transportation. They had been in the store of Parkinson, and constituted his whole stock in trade. The boxes were marked with the name of Mortimer Rice. Plaintiffs' attorney requested defendant, or his deputy, who had charge of the business, to levy on the twenty-six boxes upon the writ in his hands, and hold the goods until he could cause a writ to be issued in an action upon plaintiffs' claim, to be commenced as soon as he could go to the county seat and return with the writ, which could be done on the same day. He agreed to give defendant a bond of indemnity to his satisfaction. This request, it appears, was complied with, and upon the return of the attorney with the attachment a levy was made and duly entered upon the writ. The attorney presented an indemnifying bond in the penalty of nine hundred dollars, which recites that the defendant had levied upon goods to the value of four hundred and fifty dollars. The amount of plaintiff's claim was seven hundred and ninety-five dollars and seventy-five cents. But, as it was supposed the twenty-six boxes of goods were of greater value, the defendant's deputy declined to accept the bond. It was taken by the attorney, and with the consent of the obligees the penalty was changed to three thousand dollars; no other alterations were made. In this form it was sent by mail to the officer holding the writ.

The court thereupon gave to the jury the following instructions upon request of plaintiffs:

"1. The court instructs you as a matter of law that the bond executed by the plaintiffs as principals and R. Krause as surety was in form and amount a sufficient indemnity to the sheriff for his official acts under the writ of attachment, and that he, the sheriff, and his deputy had no legal authority or right to demand a bond in any greater or larger sum.

"2. And the court further instructs you that if you find that the defendant or his deputy was put in possession of said bond of indemnity, if the surety on said bond was responsible to the amount of his liability thereon, he became and was in law sufficiently indemnified for all acts he could legally perform under said writ of attachment, and is liable to the plaintiffs in this suit, unless he has satisfied you that the goods at the time they were attached were legally the property of one Mortimer Rice, and purchased by him in good faith from the said Parkinson, and without intent on the part of Parkinson and Rice, or those acting for them, to either hinder, delay or defraud the creditors of said Parkinson.

"3. You are also further instructed that, if you find from the evidence that the sheriff or deputy sheriff levied upon a lot of merchandise contained in boxes; that he had the legal right to hold possession of all of said boxes for a time sufficient to open said boxes, and invoice therefrom goods sufficient in amount to equal fifty per cent more than the indebtedness claimed to be owing from Parkinson to Wadsworth & Co.; and that it was the sheriff's duty, upon being indemnified, as heretofore stated, to so hold and invoice, and after invoicing he had the legal right to offer to return the remainder of the goods, and the claimant of the goods, could not legally refuse to accept a part without all, and hold the sheriff responsible in damages for all of said goods, but could only recover, if at all, for such goods as the sheriff insisted on holding.

"4. The court further instructs you that it was the duty of the sheriff or deputy in this case to levy the writ upon goods of the value of fifty per cent more than the amount of the plaintiffs' demand against the said Parkinson, and that if you find that the indemnity bond was in fact in the possession of said sheriff or his deputy, then said sheriff was fully and completely indemnified against all damages which he could sustain by reason of said levy."

The following instructions were given upon the court's own motion:

"4. If at the time the plaintiffs commenced their suit against Parkinson, and caused said attachment to be issued and levied upon said goods, said Parkinson was indebted to the plaintiffs as claimed by them; and if said goods, at the time of said attachment, were liable to seizure under said writ as the property of said Parkinson; and if the defendant or his deputy, Dearborn, before releasing said goods, was indemnified by the plaintiffs against loss by reason of levying upon and taking of said goods, sufficient in value to make fifty per cent more than said claim of the plaintiffs and if, after being so indemnified, the defendant or his said deputy, without the knowledge or consent of the plaintiffs, released all of said goods from said levy, then the defendant is liable to the plaintiffs to the amount of their said claim against said Parkinson, and the plaintiffs are entitled to a verdict against the defendants therefor.

"5. The plaintiffs claim that the defendant and his deputy Dearborn, were fully indemnified for levying upon said goods, and detaining, by virtue of said writ, sufficient thereof in value to make an amount fifty per cent more than the plaintiffs' claim upon which said attachment proceedings were based; and they also claim that it was the duty of the defendant or his said deputy, they being so indemnified, to have held under said attachment the amount in value of said goods which the law authorizes to be seized and held in attachment proceedings; and in relation to these matters you are instructed that the law of this State authorizes a levy of a writ of attachment upon property fifty per cent greater in value than the claim upon which the attachment is based, and the law makes it the duty of a sheriff or his deputy, in serving an attachment, to levy (as nearly as the circumstances of the case will permit) upon property fifty per cent greater in value than the amount of the claim sworn to in the petition upon which the attachment is based and issued; and in this case you are instructed that it was the duty of the deputy of the defendant, in levying the plaintiffs' said writ upon said goods, to have retained of said goods fifty per cent more in value thereof than the said claim of the plaintiffs, as nearly as the circumstances would permit, and to enable said deputy to discharge his duty...