Walters v. Ratliff
| Decision Date | 30 June 1900 |
| Citation | 61 P. 1070,10 Okla. 262,1900 OK 86 |
| Parties | WALTERS v. RATLIFF, Sheriff. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The probate court has jurisdiction of an action in replevin against a sheriff to recover personal property levied on under an execution against the property of another, where the value of the property does not exceed $1,000.
2. An action of replevin to recover chattels levied upon by a sheriff as the property of another is not an action against an officer for misconduct in office.
3. Under section 2663, St. 1893, every transfer of personal property, other than a thing in action, if made by a person having at the time the possession or control of the property and not accompanied by immediate delivery and followed by an actual and continued change of possession, is conclusively presumed to be fraudulent, and therefore void, as against those who are creditors of the person making such transfer while he remains in possession, and the successor in interest of such creditors.
4. Where the facts are undisputed, it is for the court to determine, as a question of law, whether such facts show such an actual and continued change of possession as will render a transfer of personal property valid as against creditors of the seller.
5. A sale of personal property may be valid and enforceable as between the vendor and vendee, and yet void as against creditors of the vendor, where such sale is unaccompanied by immediate delivery, and not followed by actual and continued change of possession.
Appeal from district court, Kingfisher county; before Justice John C. Tarsney.
Action by Charles W. Walters against John A. Ratliff, sheriff. A judgment for plaintiff was reversed on appeal to the district court, and he appeals. Affirmed.
J. C Robberts and George B. Robberts, for plaintiff in error.
Ellis Reed, Cook & Ellis, for defendant in error.
The plaintiff in error, Charles L. Walters, commenced his action in the probate court of Kingfisher county against John A Ratliff as sheriff, to recover 4 stacks of wheat in the field, and 275 bushels of wheat in the elevator. The plaintiff alleged that he was the owner and entitled to the possession of said wheat, and that it was of the value of $550, and that the defendant wrongfully detained said wheat from him. He prayed judgment for the return of said wheat or its value, and $100 damages. An affidavit in replevin was filed, but the property was never seized under the writ in replevin, and the action proceeded as one for the value of the property only. The answer was general denial. Trial was had in the probate court, and judgment rendered in favor of plaintiff for the sum of $371. Ratliff appealed to the district court, where the case was again tried to a jury, and judgment rendered for defendant on a demurrer to plaintiff's evidence. The defendant in error has moved in this court to dismiss the cause for the reason that the probate court was without jurisdiction of the subject-matter of the action, that the district court acquired no jurisdiction, and that this court is without jurisdiction. Before deciding the cause on its merits, it is incumbent on this court to determine this question of jurisdiction. The defendant, Ratliff, is named in the title of the action as "John Ratliff, as Sheriff of Kingfisher county, O. T." It is alleged in the petition that "the defendant is the duly elected, qualified, and acting sheriff of Kingfisher county, Oklahoma territory"; "that said defendant wrongfully and unjustly, as said sheriff, detains the same, and the possession thereof, from the plaintiff," "wherefore the plaintiff prays judgment against said defendant as sheriff," etc. The defendant, before trial in the probate court, moved to dismiss the cause for the reason that it was an "action against an officer for misconduct in office," and that the probate court had no jurisdiction of said cause. The motion was overruled, and after judgment the defendant appealed to the district court. In the district court the defendant renewed his motion to dismiss for want of jurisdiction in the probate court, and said motion was again overruled. He now again renews the motion here for same reasons.
The statute conferring jurisdiction on probate courts in civil causes (section 1562, St. 1893), provides: "Probate courts in their respective counties shall in addition to the powers conferred upon them by the probate chapter of the territory, have and exercise the ordinary powers and jurisdiction of justices of the peace, and shall in civil causes have concurrent jurisdiction with the district court in all civil cases in any sum not exceeding one thousand dollars, exclusive of costs, and in actions of replevin where the appraised value of the property does not exceed that sum and the provisions of the chapter on civil procedure relative to justices of the peace and to practice and proceedings in the district court shall apply to the proceedings in all civil actions, prosecuted before said probate courts: provided, that probate courts shall not have jurisdiction: First, in any action for malicious prosecution; second, in any action against officers for misconduct in office except where like proceedings can be had before justices of the peace." The causes for misconduct of officers in which justices of the peace may entertain jurisdiction are governed by subdivision 7, § 4640, St. 1893, which reads as follows: "To proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by such justice." This last provision is a part of the Civil Code, adopted from Kansas, while the former is a part of the act extending the jurisdiction of probate courts, which was ratified by an act of congress. It is contended by counsel for defendant in error that the probate court can in no case exercise any greater jurisdiction than that of a justice of the peace in actions against officers for misconduct in office, and that such courts in this class of cases are limited to proceedings against constables for misconduct. It is further contended that the case under consideration is one to recover damages against the sheriff for misconduct in office. We are not disposed to question the first contention, but is the second well founded? It does not necessarily follow that, because the wrongful act of the sheriff is an incident to the cause of action pleaded, it is an action against the officer for misconduct in office. Nor does it follow that the probate court loses jurisdiction of a cause of action, clearly within its jurisdiction, because it happens to involve the wrongful conduct of an officer. The probate court has no jurisdiction of the crime of horse stealing, yet it would have jurisdiction in an action to replevy the stolen horse, and it would not lose jurisdiction by proof of the fact that the subject of the replevin action had been feloniously stolen by the defendant. The probate court also has jurisdiction of common assault, but such jurisdiction will not be defeated because the assault was the wrongful act of an officer attempting to discharge an official duty. The question of jurisdiction must be determined from the gist and purpose of the action. The petition in the case at bar sets up a cause in replevin. It is an action to recover specific personal property or its value, and for damages for detention. It cannot be denominated an action against an officer for misconduct in office. It may be true, and probably is, that if the defendant, as sheriff, took the property in question upon a writ against some other person, and held the plaintiff's property on such writ, and by virtue of such writ, then he might be proceeded against for damages, and as such officer his bondsmen might be liable for his misconduct; but in this case the bondsmen are not sued, and there is no attempt to charge him as an officer for official misconduct, and, even though the facts proven might make a case of official misconduct, it would not change the character of the case made by the petition. The Kansas cases cited by defendant in error are not inconsistent with this theory. The case of Neal v. Keller, 12 Kan. 247, was an action brought before a justice of the peace against another justice of the peace to recover money which he had collected in his official capacity, and had failed to pay over on demand. The court held that this was an official act, and his official duty required him to pay over the money, and his failure on demand constituted misconduct in office. It was held that the justice court had no jurisdiction, because the action was one of official misconduct. The case of Brockett v. Martin, 11 Kan. 378, was an action against a justice of the peace and his sureties on an official bond, to recover for money collected by the justice upon a judgment recorded on his docket. The only question decided was whether the justice held the money by virtue of his office, or as agent for the judgment creditor. There is nothing in the case applicable to the question at bar. The case of Dodge v. Kincaid, 30 Kan. 346, 1 P. 107, was an action on a constable's bond, to recover money collected by him on an execution issued by the justice and not paid over by such constable. It was properly held that by the terms of the statute the justice of the peace had jurisdiction of such action. It had been contended that the justice should proceed summarily, instead of by civil action on the bond. We do not question the correctness of any of these decisions, nor do they conflict with our views in this case. The case cited from the Ohio supreme court (Smith v. Josselyn, 40 Ohio St. 409) holds that a seizure of the goods of A. under color of process against B. is...
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