23 S.D. 509 | S.D. | 1909
This is an appeal from an order overruling a demurrer to plaintiff’s complaint. The complaint alleges, in substance: That in the month of January, 1905, the Acme Harvester Company, a foreign corporation, obtained a judgment in the circuit court of Marshall county against one Hinkley for $1,071.25 ; that at the time said judgment was entered there were unpaid personal property taxes for six years preceding against the Acme Harvester Company in Marshall county, amounting to $94.36; that on December 5, 1905, a warrant, issued out of the office of the county treasurer, was placed in the hands of the sheriff, authorizing and directing him to collect such delinquent taxes out of the personal property of the Acme Harvester Company; that the sheriff, in the execution of said tax warrant, undertook to levy upon the said judgment by serving -a notice of levy on the attorney who recovered the judgment and filing a copy of such notice with the clerk of the circuit court; that on December 11, 1905, the sheriff sold Said judgment to one Lee for $50 and filed a certificate of such sale with the clerk of the circuit court; and that on December 12, 1905, said purchaser, Lee, filed a satisfaction of said judgment in the office of the clerk of court. The defendants Kass and Guy were sureties on an undertaking given by Hinkley on appeal, and the defendants Amphlett and Wilson were, respectively, clerk of court and treasurer of Marshall county. The plaintiff prays that the satisfaction of the judgment entered by the purchaser, Lee, on December 12, 1905, be set aside to the end that execution may issue on said judgment against Hinkley, the judgment creditor. All the defendants join in a demurrer to the complaint, which was overruled, and defendants .appeal.
The demurrer was based upon three grounds; but in the view we take of this case it is only necessary to consider the first, viz., that the attempted levy of the sheriff upon the judgment, under the tax wan-ant was wholly and absolutely void. That a judgment is personal property and is subject to levy and sale on execution is
It is contended by appellant that the sale of the judgment under the tax warrant was legal and valid, and that therefore the demurrer to the complaint should have been sustained. Respondent contends that such levy and sale were absolutely void for two reasons: First, that the judgment, which is conceded to be personal property, is intangible property and cannot be taken or levied upon in distress proceedings; second, that said levy is void because-not made in the mode provided for execution issued on judgments. We are inclined to believe respondent is right in his first
In Davis v. Arledge, 3 Hill (S. C.) 172, 30 Am. Dec. 361, in discussing a seizure of books ;of account. upon distraint, the count says: “However, in the origin of the common-law remedy of distress, it was considered only in the light of a pledge, for the ultimate security of the rent in arrears, or rather for the perform-' anee of the feudal services. It has long since ceased to be re garded in that light, and it is now become, by numerous statutes, merely .a summary, mode of enforcing the payment of rent, by sale of the tenant’s effects. Now books of account are not susceptible of this process. There is no .provision in any known statute by which they can be appraised, sold, or assigned to the landlord, and, indeed, they -are not goods and chattels in the ordinary sense of. the word, but merely evidences of debt, choses in action, which we think have never been held liable to distress for rent, any more than to be taken in execution.”
A distress is not judicial process. Ross v. Holtzman, 3 Cranch, C. C. 391, Fed. Cas. No. 12,075. A tax collector derives his authority to sell from the -statute. No authority to sell existed at common law. Caldwell v. Eaton, 5 Mass. 399. Section 2180, Rev. Pol. Code, provides that delinquent taxes may be collected “by seizure of personal property of such person. * * * If the propr erty so distrained cannot be sold for want of bidders-, the treasurer shall return a statement of the fact, and return the property to the possession of the person.from whom he took the same. * * This ‘statute plainly contemplates the actual manual .seizure of the-property distrained, and-its. sale, .or return to the person, from-
The order of the trial court overruling the demurrer is süs-, tained, and the case remanded. '