William F. Dolan & Co. v. Topping
| Decision Date | 06 May 1893 |
| Citation | 32 P. 1120,51 Kan. 321 |
| Court | Kansas Supreme Court |
| Parties | WILLIAM F. DOLAN & CO. et al. v. J. W. TOPPING et al |
Error from Ness District Court.
ATTACHMENT by Dolan & Co. against Peters and others. On the order overruling their motion to discharge a prior attachment levied on the same property at the suit of Topping plaintiffs bring error.
Judgment reversed and remanded.
Thomas Berry, and Buchan, Freeman & Porter, for plaintiffs in error:
1. The pretended order of attachment issued in the action was never served by the sheriff, nor by a deputy sheriff, nor by any undersheriff of said county, nor by any other person legally authorized to serve said pretended order of attachment. The sheriff neither appointed him nor knew of his appointment until after Cooper had pretended to act, and never ratified the pretended appointment. It was made by the clerk, who has no authority to make any appointment of a person to serve process except as provided in § 702 of the code of civil procedure.
The law presumes that the sheriff is present in the county at all times, either in person or by his deputies, the same as any other officer. Moreover, the evidence in this case shows that the sheriff, Rogers, was in the county all of that day, and had at least three deputies present in Ness City all of that day.
The sheriff is made responsible on his official bond for the default or misconduct of his undersheriffs or deputies; P 1763, Gen. Stat. of 1889; but he certainly would not be responsible on his bond for the conduct of a person claiming to be appointed "special sheriff," as Cooper claimed to be in this case. If the grounds relied upon for Cooper's appointment are sufficient to authorize the clerk to appoint a "special sheriff" should be held good, then it follows that, whenever the sheriff is outside of the county seat engaged in the service of papers in the county, and his deputies are not found at once, a party can have any person appointed to exercise the duties of sheriff serve writs of all kinds, seize the property of individuals with perfect impunity, and not be required to furnish a bond for the protection of the rights of individuals. Parties could wait, and watch for an opportunity when the sheriff would be outside of the city limits, and have reckless persons appointed to take his place, who would act without warrant of law, if the circumstances were such that it happened to be to the interest of parties to have them do so.
2. If the property was lawfully attached by the alleged special sheriff, it was abandoned by him and by Topping, and the attachments of the several junior creditors levied thereon have ever since continued valid and subsisting liens thereon. A temporary interruption of the custody of the officer is fatal to the lien. Walker v. Foxcroft, 2 Me. 270. Topping himself says he gave the key of the building to Sheriff Rogers to enable him to levy an adverse attachment. The possession of this property, actual as well as constructive was never in I. C. Cooper, or his custodian, Topping, from the time Topping turned the key over to the sheriff, because the sheriff held the actual possession of it until he delivered it to the receiver under the order of the court.
If Cooper had been entitled to the custody of the property as against the sheriff, he should have taken steps to secure possession by a suit to recover the possession. But no steps of this kind were taken. He lost any lien he ever had, if he had any, and neither he nor his custodian, Topping, ever claimed or asserted the right to the possession of this property after turning it over to the sheriff.
N. H. Stidger, and Geo. S. Redd, for defendants in error:
1. Counsel for plaintiffs in error seem to think that it is a dangerous power to place in the hands of a clerk; for, upon any pretext, a careless person, and without giving a bond, may be appointed to serve attachments, and property may be attached with impunity, and innocent persons suffer without recourse. This is not true; for the person whom the clerk appoints, when he assumes to act, thereby assumes all the liabilities of the officer. Besides, the person upon whose application he is appointed is liable for his wrongful acts. See, under a similar statute, Harvey v. McAdams, 32 Mich. 475. An officer is presumed to do his duty, and to appoint a person who is responsible for his acts. In Mayers v. Wicks, 15 Ohio St. 584, under a similar statute, the supreme court, by way of dictum, say that a bond should be taken in such a case, but it is not required.
Admitting that the cause, as shown for this appointment, was probably insufficient to justify the appointment, and that the clerk, should have required a stronger showing, yet we insist that the clerk having authority in law to make the appointment, and having made the same, and the appointee having accepted and acted, he thereby became clothed with all the powers of a de facto officer, and his acts were as binding on the third parties and the public as the acts of the regular sheriff, and this though there be forty sheriffs and deputies in the sheriff's office at the time ready and willing to serve the process. See Hunters v. Ferguson, 13 Kan. 462; Reinhart v. The State, 14 id. 318; Comm'rs of Saline Co. v. Anderson, 20 id. 300; The State v. Williams, 5 Wis. 308; Doty v. Graham, 5 Pick. 487; Ex parte Strang, 21 Ohio St. 610; The State v. Alling, 12 Ohio 18.
But it may be argued that, there being a de jure sheriff who was also the de facto officer, there could be no other de facto officer. That would be true if Cooper were claiming to be the sheriff. In this particular case, only one person was claiming to act, and that was Cooper. When he was appointed, his appointment ousted the regular sheriff of any jurisdiction or authority over the particular process he was appointed to serve, and, as to that particular process, he became a de facto officer at least. All that is required to make a de facto officer is some color of authority in the person appointing, and the further fact that the appointee assumes to and does act.
2. If Cooper was a legally-constituted special officer to serve the process in this particular case, did he or the plaintiff abandon the property attached so as to lose the attachment lien?
The burden of proof rests upon the plaintiffs in error to show these facts if possible. The testimony nowhere discloses any facts that would justify the court in arriving at the conclusion stated in that proposition. On the other hand, it shows a clear intention on the part of both the plaintiff below and the officer who made the attachment to hold the property subject to the attachment lien. It nowhere discloses a single act of either the plaintiff or the officer making the levy that would justify these persons who are pleased to call themselves "junior attaching creditors," or the officers having their attachment, to believe that the plaintiff had abandoned his attachment lien on the property.
Thomas Berry, and Buchan, Freeman & Porter, for plaintiffs in error, in reply:
The plaintiffs in error have not at any time admitted or conceded any right or claim in Topping to the attached goods, or the proceeds of the same, or any part thereof, prior in time to their own attachment. On the contrary, their claims have been hostile to that of Topping from the time the sheriff took possession of the goods. Green v. McMurtry, 20 Kan. 193, and authorities cited; Long v. Murphy, 27 id. 375; Grocery Co. v. Records, 40 id. 119; Civil Code, § 532.
This proceeding involves the question whether a person appointed as special sheriff by the clerk of the district court in a certain case, upon the mere statement by the plaintiff that he had looked with diligence but in vain to find the sheriff or his deputy to serve the process, may legally serve an order of attachment. J. W. Topping began an action in the district court of Ness county against M. L. Peters, and procured the issuance of an order of attachment, which was directed to I. C. Cooper, as special sheriff. The following statement or application by an attorney of Topping's was the only basis for the appointment:
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Ballew v. Young
... ... August, 51 Kan. 53, 32 P. 635; Manufacturing Co. v ... August, 51 Kan. 59, 32 P. 636; Dolan v ... Topping, 51 Kan. 321, 32 P. 1120; Standard Implement ... Co. v. Parlin & Orendorff Co., ... ...
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Ballew v. Young
...Kan. 506, 26 P. 1038; Boot & Shoe Co. v. August, 51 Kan. 53, 32 P. 635; Manufacturing Co. v. August, 51 Kan. 59, 32 P. 636; Dolan v. Topping, 51 Kan. 321, 32 P. 1120; Standard Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, 33 P. 363. ¶14 But this question came directly before, the co......
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Pickard v. Marsh
...522; Union Mutual Fire Ins. Co. v. Page, 61 Mich. 72, 27 N.W. 859; Green v. New London County Agricul. Soc., 32 Conn. 95; Dolan v. Topping, 51 Kan. 321, 32 P. 1120. the constable cannot be arbitrarily deprived by the justice of the emoluments of the office ( Skinner v. Board of Commissioner......
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Doherty v. Kalmbach, 6715.
...sheriff and the coroner are disqualified, the court is without power to nominate and appoint an elisor to serve the writ. Dolan v. Topping, 51 Kan. 321, 32 P. 1120, is substantially to the same In this case there was no effort to show actual disqualification of the marshal and the coroner. ......