Wise v. Darby

• Decision Date: 31 January 1845
• Citation: 9 Mo. 131
• Parties: WISE v. DARBY, ADMINISTRATOR, &c.
• Court: Missouri Supreme Court

9 Mo. 131

WISE

v.DARBY, ADMINISTRATOR, &c.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

CALLAHAN, for Plaintiff.

LEONARD and BAY, for Defendant. 1. The executions of the plaintiffs in in error, by the directions given to the sheriff to delay the levy for an indefinite period, became dormant, and constructively fraudulent: the plaintiffs, therefore, lost their preference. Kellogg v. Griffin, 17 Johns. R. 275; Benjamin v. Smith, 4 Wend. 333; Storm & Buckman v. Woods, 4 Johns. R. 109: Kempland v. Macauly, Peake, 66; Pringle v. Price, 11 Price, 415.2. The last execution of the plaintiffs in error were improvidently issued. The executions first issued were returnable to the September term of the court, under the 5th section of the act of February 6, 1843, Session acts of 1842-3, p. 55; also, 28th section of act establishing the Court of Common Pleas of St. Louis county, Session acts of 1841-2, p. 53. 3. A writ of error will not lie in this proceeding, which is not a “final judgment or decision, in the cause,” within the meaning of the first section of the act of 1835, concerning Practice in the Supreme Court, but is an interlocutory, or collateral order. Buel v. Street, 9 Johns. R. 443; 14 Johns. R. 76; Brooks v. Hunt, 17 Johns. R. 484; in the matter of Negus, 10 Wend. 34.

NAPTON, J.

This was a motion made by Darby, the defendant in error, in the Court of Common Pleas of St. Louis county, asking that court to instruct the sheriff to sell certain property levied on by virtue of an execution in favor of said Darby against M. & F. Steigers, and to apply the proceeds to the satisfaction of the execution.

The motion was resisted by the plaintiffs in error, who claimed the property, by virtue of executions in their favor, issued anterior to the executions in favor of the plaintiff, and first placed in the hands of the sheriff. Affidavits in support of the motion, and counter-affidavits in behalf of plaintiffs in error, were read on the hearing of the motion. The court sustained the the motion, and directed the proceeds of the sale to be paid over to the defendants in error.

It appears from the affidavits, and from the returns made upon each of the executions, that the execution in favor of Darby, administrator of Gross, against M. & F. Steigers, issued on the 24th March, 1843, for the sum of about eight hundred dollars, and was placed in the hands of the sheriff on the same day. At that time, the sheriff had in his hands two executions against the same parties, one in favor of S. Wise, and the other in favor of P. Wise, amounting to about seven hundred dollars; but annexed to each of the last mentioned executions, were written instructions by the plaintiff's attorney directing the sheriff not to levy, until ordered by said attorney. The defendant in error directed the sheriff to levy his execution forthwith, and the sheriff did so. On the evening of the same day, and before the inventory of the property levied under the execution of Darby was completed, the attorney of the plaintiff in error went to the sheriff, and tore off the written instructions appended to the executions, and directed an immediate levy on the same property. The sheriff levied, made sale and returned the facts especially, bringing the money into court, to be paid over as the court should direct.

Before examining the main question, it is necessary to dispose of the objection taken by counsel for the defendant in error, “that this is not a final judgment or decision within the meaning of our act regulating the practice and proceedings of this court, and that a writ of error will not lie.”

As the sheriff had not paid over the money collected, there could be no objection to settling the rights of the execution creditors by motion. Hutchinson v. Johnson, 1 Term R. 732. That the decision of the Court of Common Pleas on that motion was final; that it was an end of the case is apparent. Unless there be something in the character of a judgment upon a motion, which would make a mandamus the proper writ to test the propriety of that judgment, the objection to the writ of error cannot prevail.

The writ of mandamus only lies in cases where the inferior court has done, or refuses to do, a mere ministerial act. It would seem sufficiently manifest from the statement of the facts in this case, that the decision, or judgment upon the motion, involved the determination of a question of law, and the application of that law to the facts in proof. We see no objection, therefore, to the writ of error.

The main question for determination is: where an execution is delivered to a sheriff, and the plaintiff or his attorney directs the officer not to levy, and a second execution is placed in the hands of the same officer, which is first levied, and the goods sold under both writs, which shall be first satisfied?

Though the writ of execution...