5 Wash. 493 | Wash. | 1893
The opinion of the court was delivered by
This is an action brought under the provisions of title é, chapter é of the Code of Procedure, the plaintiff and respondent claiming the ownership and right to the possession of certain saw logs attached by the sheriff of Island county, under a writ issued in the case of L.
There can be but two questions in this case: (1) Was there any fraud in obtaining the bill of sale by Anderson? (2) Was there any lien on the logs by virtue of an attachment at the time the bill of sale was given? One is a question of fact, the other a question of law, the facts being conceded.
We have carefully examined the testimony, and agree with the trial court that there was no evidence tending to show fraud in obtaining the bill of sale or tending to dispute the bona fides of the transaction, and consequently nothing under that head to submit to the jury.
We are also of the opinion that the court took the correct view of the legal proposition. Even conceding that the lien under the second attachment had not been lost when the sheriff went out of office, which would be a doubtful concession, considering the testimony of the new sheriff that he did not make an actual levy until the 4th day of
So far as the right of the officer is concerned, his title is dependent for its continuance upon the continuing of the necessity of holding the property to answer the purpose of the writ. Freeman on Executions, § 268; Wade on Attachment, § 294. Upon the dissolution of the writ the necessity ceases, and all his title to hold the property ceases. If upon the dissolution of the attachment the sheriff had refused to deliver the property to the defendant, the defendant could have maintained an action against him for its possession; and, on the other hand, if, after the dissolution of the attachment, the defendant had taken possession of the property without its having been formally turned over to him, the sheriff would have had no power to enforce its redelivery to him.
It follows conclusively that his right of possession ceased with the dissolution of the writ, and if he was afterward clothed with authority to seize property of the defendant, he must act on that authority independently of any effect or power of the old writ. It is conceded that he did not make an actual levy in this case until after the sale to the respondent.
We have examined the other points raised by appellant, and we think there is no substantial error in the trial by the court, and judgment is therefore affirmed.