Welter v. Jacobson
| Decision Date | 30 October 1897 |
| Citation | 73 N.W. 65,7 N.D. 32 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Sauter, J.
Action by Katherine Welter against C. A. Jacobson, sheriff of Walsh County. Judgment for plaintiff, and defendant appeals.
Reversed.
Judgment reversed, and a new trial ordered.
John H Fraine, (J. H. Bosard, of counsel,) for appellant.
The complaint does not state a cause of action in that it is no where alleged that plaintiff was the owner, in possession or entitled to the possession of the grain at the time the same was seized by the sheriff. An allegation that plaintiff was owner at the time suit was begun is not sufficient. Pitts Agr. Works v. Young, 62 N.W. 433; Willis v DeWitt, 52 N.W. 1090; Branch v. Wiseman, 51 Ind. 1; Middlesworth v. Sedgwick, 10 Cal. 392. It is no where alleged in the complaint that plaintiff made the statutory affidavit of title to the property or served the same on defendant under § 4982, Comp. Laws, and this is necessary. Willis v. DeWitt, 52 N.W. 1090; Welhite v. Williams, 21 P. 257; Campbell v Jones, 38 Cal. 507; Bacon v. Robson, 53 Cal. 399. The action cannot be maintained because the property sought to be recovered was not in the actual or constructive possession of defendant when the action was begun. Willis v. DeWitt, 3 S.D. 281, 52 N.W. 1090; Hickey v. Hensdale, 12 Mich. 100; Gildas v. Crosby, 61 Mich. 413, 28 N.W. 153; Moses v. Morris, 20 Kan. 208; Feder v. Abrahams, 28 Mo.App. 454; Hall v. White, 106 Mass. 599; Johnson v. Garlick, 25 Wis. 705; McHugh v. Robinson, 71 Wis. 565; State v. Jennings, 14 Ohio St. 73; Coffin v. Gephart, 18 Ia. 257; Ames v. Boone Co., 8 Minn. 467.
Spencer & Sinkler, for respondent.
If no recovery can be had against an officer under § 5341, Rev. Codes, until after the statutory affidavit has been served. The failure to serve the affidavit is a matter to be plead in defense by the officer, but way of answer. Paden v. Goldbaum, 37 P. 759; Brenot v. Robinson, 41 P. 37. An officer is protected by his writ. Shipman v. Clark, 4 Denio, 446. But when he does what his writ does not authorize him to do he is not protected. Billings v. Thomas, 114 Mass. 570; Stimson v. Reynolds, 14 Barb. 506; Otis v. Williams, 70 N.Y. 208; Foster v. Pettibone, 20 Barb. 250; Bullis v. Montgomery, 50 N.Y. 352. The fact that the taking was tortious, relieves the plaintiff from the necessity of making or proving a demand. Boulward v. Craddock, 30 Cal. 190; Moore v. Muddock, 26 Cal. 515; Sharon v. Nunan, 63 Cal. 235; Stone v. O'Brien, 4 P. 792; Lynd v. Picket, 7 Minn. 184; Moser v. Jenkins, 5 Or. 447; Homan v. Laboo, 1 Neb. 204.
The plaintiff is pursuing a wrong remedy to vindicate her rights. She is seeking in an action of replevin to recover the possession of certain wheat seized by the defendant, as the sheriff of Walsh County, in this state under a requisition in claim and delivery proceedings instituted in another action of replevin by other parties against the husband of the plaintiff. The property was, when the second replevin suit was commenced, in custody of law, the sheriff not having at that time delivered the property to either of the parties to the first replevin action, and therefore it was not then subject to seizure in the new replevin action. Whatever differences of opinion have arisen touching the question whether, after delivery to one of the parties to the case, the property is still in custody of law, there is unanimity on this point. The sheriff is charged under the law with the duty of ultimately delivering the property to one of the parties to the litigation, to be held by him pendente lite. The court, through its executive officer, lays its hands upon the property until the question of the right to the custody of the res while the controversy over it remains unsettled, is determined. To assert the right of a stranger to the action to wrest the property from the sheriff's control is to proclaim the impotence of the court to protect its own jurisdiction and its own officers when obeying its commands. The property is seized to be held by the court until one party or the other shall have established his legal right to the possession thereof pendente lite; and the law commands the executive officer of the court to keep it until this question is settled, to the end that, when it is settled, the sheriff may deliver it to the party who is entitled thereto until final judgment. But how can the sheriff perform this duty if it may be taken from him by the plaintiff in another replevin action? If the defendant does not except to the sureties, or if they justify despite his challenge of their sufficiency, and if he does not rebond, the sheriff must deliver the property to the plaintiff. If, on the other hand, the plaintiff's sureties do not justify, or if the defendant does rebond, the sheriff must deliver the property to him, the defendant. In any event, one of the parties is, after a brief period during which the sheriff must hold the property, entitled to the possession thereof pendente lite. Will the law suffer the executive officer of a court to be embarrassed in the discharge of his duty by allowing the property to be taken from him in a second replevin suit, thus rendering the prompt performance of that duty impossible and the performance of it at all out of the question unless he rebonds, thereby being put to trouble and subjected to the hazard of loss in a matter in which he has no interest, but in which he stands indifferent between all the parties,--those who are parties to the original replevin action and the claimant as well? On principle, there can be only one answer to this inquiry. The property is in the custody of the law, and cannot, in judicial proceedings, be seized by any one, not even the owner thereof, when such owner is a stranger to the suit. Considerations of justice from the standpoint of the sheriff reinforce the argument based on principle, and the authorities present an unbroken front on this point. They hold without exception that, in the absence of statutory change, the rule is that, while the officer has the custody of the property, replevin will not lie. Sanborn v. Leavitt, 43 N.H. 473; Powell v. Bradlee, 9 G. & J. 220, 274; Hagan v. Deuell, 24 Ark. 216; Weiner v. Van Rensselaer, 43 N.J.L. 547; White v. Dolliver, 113 Mass. 400, 407. To same effect are Watkins v. Page, 2 Wis. 92; Weinburg v. Conover, 4 Wis. 803; Griffith v. Smith, 22 Wis. 646; Tremaine v. Mortimer, (Super. N. Y.) 7 N.Y.S. 681; Bank v. Dunn, 97 N.Y. 149. The cases of Gross v. Bogard, 18 Kan. 288; Reiley v. Haynes, 38 Kan. 259, 16 P. 440, and Davis v. Gambert, 57 Iowa 239, 10 N.W. 658, rest upon statutory provisions construed by the courts in those cases as authorizing a second replevin suit by a stranger to the first replevin action while the property was still in the custody of the sheriff. In Gross v. Bogard, 18 Kan. 288, the court expressly recognized the common-law rule which we apply in this case. "The question must be settled by a reference to our statutes, for it will not be doubted that, at common law, property in the hands of an officer under a writ of replevin was in custodia legis, and could not be taken from him by means of another writ." Some of the decisions prohibit the seizure of the property on execution or in a second replevin action even after it has been delivered to one of the parties to the first action of replevin, or has been left by the officer in the custody of a third person under a forthcoming bond. Bank v. Dunn, 97 N.Y. 149; Goodheart v. Bowen, 2 Ill.App. 578; Pipher v. Fordyce, 88 Ind. 436; Bank v. Owen, 79 Mo. 429; Rhines v. Phelps, 8 Ill. 455, 3 Gilm. 455; Selleck v. Phelps, 11 Wis. 380; Hagan v. Lucas, 10 Peters 400; Acker v. White, 25 Wend. 614. On the other hand, many adjudications treat the property as subject to seizure under execution or in replevin the moment it is delivered into the hands of the plaintiff or the defendant in the original replevin action, and we believe that they state the true doctrine. Kelleher v. Clark, 135 Mass. 45; White v. Dolliver, 113 Mass. 400; Ilsley v. Stubbs, 5 Mass. 280; Coen v. Watkins, 1 Mo.App. Rep'r, 555; Hagan v. Deuell, 24 Ark. 216; Bell v. Bartlett, 7 N.H. 178; Sanborn v. Leavitt, 43 N.H. 473; Larsen v. Nichols, (Minn.) 62 Minn. 256, 64 N.W. 553. We need not in this case settle this very interesting and somewhat important question. It is not here involved. An examination of the very decisions which hold that the grasp of the law upon the res is released by the delivery thereof to one of the parties to the litigation discloses the fact that they all recognize the doctrine that replevin will not lie against the sheriff.
The question has thus far been discussed on the theory that no change in the common-law rule has been effected in this state by legislation, and it now becomes necessary to ascertain whether any provision of the code has modified this doctrine of the common law. Section 5341, Rev. Codes, provides ...
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