Appeal of E. S. Jaffray & Co.

101 Pa. 583 | Pa. | 1883

Mr. Justice Gordon

delivered the opinion of the court, January 2d 1883.

Able and ingenious as is the opinion of the learned judge of the court below, it has failed to convince us of the rectitude of the legal position which he therein assumes.

Tile question is a very simple one, and one upon which there is no real difference of authority; indeed, there can be none, so far as the state of Pennsylvania is concerned, for the whole matter is fixed and controlled by the provisions of the Act of Assembly. The question is, were the goods in controversy regularly seized by the sheriff of Crawford county on the writ of foreign attachment of Jaffray & Co.? If they were so seized, the present contention must be determined in favor of the appellants. In order then to settle this matter, we must turn to the sheriff’s return as indorsed on the writ, but when we do so we find in this a strict compliance with the terms of the Act of Assembly. If it be, as stated by this return, that the sheriff, by himself or deputy, went to the store of De Forest Weld, in the city of Meadville, on the 1st of March 1881, at 3.53 p. m., and there declared, in the presence of F. W. Ellsworth and L. H. Lenheim, two credible persons of the neighborhood, that he attached the stock of goods in the store, consisting of silks, &c., and that he then and there made known the contents of said writ to Byers and Trawin, who were found in- the possession of said goods, then, from that moment, this property, in the language of the Act, was bound by the writ and in the officer’s power, and from that moment Byers and Trawin became the sheriff’s bailees, and to him they were responsible for the care of the goods, as he in turn was answerable, under the 50th section of the Act of 1836, for the forthcoming of the property to answer and abide the judgment of the court. About these facts, however, thus set forth, there is nd dispute. It is a fact that the deputy sheriff did, at the time stated, go into the store, and there, with the goods in sight and fully within his power, execute the writ as set forth in his return. This was a seizure to all intents and purposes. As was said by Sergeant, Justice, in Paxton v. Steckel, 2 Barr 93, the levying the attachment may be done without either handling the goods, or taking them into possession, and the property fully bound by it, and be in the officer’s power, and the owner’s possession thereby divested. Now the error in the court below seems to have arisen from a-misunderstanding of the word “ seized ” as used in the cases by it cited. As in the cases of the Pennsylvania Railroad Co. v. Pennock, 1 P. F. S. 244, and Morgan v. Watmough, 5 Wh. 127. But in these, as in all the other cases thus cited, where seizure and possession are insisted upon, it will be seen by a careful reading of them, that no exception has ever been taken to a seizure such as the one now under consideration; on the other hand that is exactly the one that is said to bo required; and the one which, by force of the act, draws the possession to it. In the first of the two casos last mentioned, Mr. Justice Thompson says: “ Now, it is undoubted that the property claimed to be attached in this case, was susceptible of seizure, had it been present. But it was not, and nothing was done in attaching it that the Act requires. There was no seizure and declaration in the presence of witnesses, and if this were necessary to a service as the Act declares, the property was riot bound by the writ. If the property was not bound it is not easy to see how any person would be bound to answer as garnishee. The first thing was to serve the property, so to speak, the next the person in whose hands it should happen to be found. But here the order was reversed, and rather more. The garnishee was served first and the property hot served at all.” But certainly this language cannot be applied to the service of the writ under discussion, where every particular of. the Act- relating to the levy was cons plied with, and in consequence-of which the sheriff was .vested with the possession of the goods, and the defendant’s possession as completely divested as though the officer had at once carted them away from the premises on which they were found. So in the second of those cases, Mr. Justice Sergeant speaks in this manner“ the sheriff is bound to seize the goods as in other eases, and in taking them into his actual possession until security was given, lie was complying with the positive directions of the Act.” Here what the learned justice means by the word “ seize ” is made obvious by his assertion that the “ seizure must be made as in other cases.” That is, on an execution. But we all know what this means when applied to ordinary execution process. The sheriff must make his levy in view of the goods, but he need not carry them away. He may even leave them in the possession of the defendant, and thus constitute him his bailee. Yet in Trovillo v. Tilford, 6 Watts 468, it is said, “the officer, in making the levy on the goods of the defendant, should make an actual seizure, but seizing part of the goods in the name of the whole, on the premises, is a good seizure of the whole.”

But the counsel for the appellees seriously contend that the latter clause of the 50th section of the Act should be made part of the return. But we answer, the statute does not direct an act so useless and illogical. As well might the first clause be made part of the return, though it is merely declarative of the effect of the levy. In like manner is the latter clause but declarative of the sheriff’s responsibility with reference to the goods which the law, by virtue of the levy, has put into his possession or power.

The error is found in the attempt to make that language directory which is purely descriptive and definitive. Where the property is of a particular character, that is, where it is of a kind which is susceptible of manual seizure, the sheriff must, at his own peril, so secure it that it may be forthcoming on the final disposition of the case. But how he is to secure it is not said, except that, inter alia, he may, for that purpose, take the bond of the garnishee. All this, however, is no more than is the responsibility cast upon the sheriff as to goods seized upon a fi. fa.

As we have before intimated, after the seizure of the goods in controversy, the garnishees became the bailees of the sheriff: Shriver v. Harbaugh, 1 Wr. 399; and thus was his possession con tinned.until he chose otherwise to secure the property, and which he did so otherwise secure, by taking it into his own possession, on the very day of the seizure, and within four or five hours after it was made. There is, therefore, nothing left but the conclusion that all things that were done in the premises were done regularly and bound the goods in controversy, and so the appellants became entitled to their proceeds.

Finally, if Paxson’s Appeal, 13 Wr. 195, is law, we cannot see how the appellees can avoid the return on their own writs of fi. fa. The indorsement with the levies is “ being the same property attached by me as the property of Do Forest Weld.” This, of course, binds both the sheriff and his privies, the plaintiffs in the writs, and subordinates those writs to the previous attachment.

It follows, that under any aspect of this case the decree of the court below, sustaining the exceptions to the Auditor’s report, was erroneous and must be reversed.

The decree is now reversed at the costs of the appellees, and it is ordered that the auditor’s report be restored and affirmed, and that distribution be made in accordance with it.