Bank of Commerce v. United States Fidelity & Guaranty Co.
194 P. 158
Mont.
1920
Check Treatment

Lead Opinion

MR. JUSTICE COOPER

delivered the opinion of the court.

The respondent bank, plaintiff below, recovered a judgment against appellant as surety upon the official bond of the sheriff of Rosebud county for the sum of $1,557.43, upon a cause of action growing out of the following state of facts:

In November, 1913, one E. S. Haskell commenced an action against the firm of Woolston & Holland, a copartnership conducting a garage and automobile business in the town of Forsyth in said county, to recover a balance of about $5,000 alleged to be due him from said firm, for goods sold and delivered to them. On the same day a writ of attachment was issued out of the district court of that county and by the sheriff thereof levied on property supposed to belong to the firm. The respondent bank filed and served upon the sheriff a third-party claim for the property so attached. On November 25 the plaintiff in the attachment suit delivered to the then sheriff (William E. Moses) a bond securing the sheriff in the retention of the attached property. In the following January the sheriff was killed and John Yan der Pauwert, who had theretofore during the incumbency of said Moses served as undersheriff, was on February 4 appointed and duly qualified as the successor of Moses. On June 30, and while the suit in attachment was still pending, the respondent bank commenced an' action in'claim and delivery against Yan der Pauwert alone. Failing to appear, in due course a default was taken against him, and a judgment rendered and entered determining that the possession and ownership of the property was in the respondent bank at the time of the levy of the attachment upon the property in question, and that defendant therein was in possession thereof and wrongfully withholding the same from the plaintiff. The judgment also *242provided for a return of the property to the bank, or for its value in ease delivery could not be had. On January 28, 1916, a writ of execution was issued in the claim and delivery action, for the return of the property to the bank. Upon service of the writ on Yan der Pauwert, he responded that he was unable to return any of the property. No return appears to have been made on the writ of execution. On February 18, 1916, this action was commenced against appellant on the official bond of Yan der Pauwert for his neglect and refusal to return the property so attached, or its value in money.

It appears in evidence that the defendant Van der Pauwert was acting as undersheriffi for Moses during the time of the occurrences in question; that he had full knowledge of the business both before and after his assumption of the office of sheriff; that he was conversant with the transaction attending the seizure of the property under attachment proceedings at the suit of E. S. Haskell v. Woolston et al.; that while undersheriff he subjected some of the articles under attachment to his own personal use, and, as sheriff, took actual possession of it all, retained it during the pendency of all the proceedings now before us, and never did deliver the property to the plaintiff in response to its demand upon him.

At the close of all the testimony both the plaintiff and defendant moved the court to direct a verdict in its favor upon the ground that in the then state of the evidence there was no substantial issue of fact touching the immediate delivery followed by an actual and continued change of possession of [1] the property subjected to attachment at the suit of Haskell v. Woolston et al. The court denied the motion of the defendant, granted the motion of plaintiff and directed a verdict in plaintiff’s favor. The defendant, after the ruling against it, did not request the court to submit’ that issue to the jury. In this condition of the case, the question of fact involving the delivery of the property by Woolston to the plaintiff and the continued retention of it by plaintiff was for determination by the court, as held ip. the recent decision of *243this court in the case of Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 Pac. 155. The district court having found that issue in favor of the plaintiff and rendered judgment in its favor, it is now left for us to say whether there was in the case below a substantial issue of fact upon which the judgment can legally rest.

The pleadings put in issue the possession and ownership of the property at the time of the attachment. If that issue is to stand determined in favor of plaintiff, the other questions [2,3] discussed are so far subordinate to it as to require no consideration. Plainly, the sheriff could not justify the seizure of the property of a stranger to the writ. Having wrongfully seized the property, he may be sued therefor in any appropriate form of action the bank, whose rights have been invaded, may elect to pursue. (2 Freeman on Executions, sec. 272, and authorities cited.)

"Where the evidence is conflicting, the judgment of the lower [4] court will not be disturbed on appeal. (Mattock v. Goughnour, 13 Mont. 300, 34 Pac. 36; Welch v. Nichols, 41 Mont. 435, 110 Pac. 89.) The trial court had the witnesses before it, heard the testimony, had an opportunity to observe their demeanor upon the stand, and, having found for the plaintiff upon what we deem a substantial conflict in the testimony, “its action thereon will not be disturbed, unless it is manifest that its discretion has been abused.” (Welch v. Nichols, supra.) The district court again passed upon the sufficiency of the evidence on the motion for a new trial, and its order overruling the motion will not be disturbed in the absence of a showing of abuse of discretion. (Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; White v. Barling, 41 Mont. 138, 108 Pac. 654; Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.) In Chestnut v. Sales, 44 Mont. 534, 121 Pac. 481, this language was used: “As the cause was decided fop the plaintiff, it must be presumed that he established those facts which the evidence on his part fairly tended to prove, "and that every disputed question of fact was resolved in his *244favor.” It .was the duty of the trial court, upon defendant’s motion for a new trial, to say whether the evidence in weight justified the verdict.. (Harrington v. Butte etc. Min. Co., 27 Mont. 1, 69 Pac. 102.)

Whether Woolston & Holland had in good faith sold the property before its sequestration by attachment and accompanied the sale by an immediate delivery and continued change of possession, was the vital question before the court. This fact the district court determined in favor of the plaintiff. After a careful review of all the testimony, we are not prepared to differ with that court in its conclusion that the testimony was sufficient to establish that- fact. “As between the parties to a Sale of personal property, it is wholly immaterial whether there is 'any delivery of the thing sold. It is equally true that a mere creditor, as such, does not have any interest whatever in his debtor’s property.. If the Shaekleton & Whiteway Construction Company had in good faith sold all this property to Farnham and others on June 26, and had accompanied the sale by an. immediate delivery, Parr could not complain, even though such sale might operate to defeat him in the collection of his debt.” (Western Min. Supply Co. v. Quinn, 40 Mont. 156, 135 Am. St. Rep. 612, 20 Ann. Gas. 173, 28 L. R. A. (n. s.) 214, 105 Pac. 732.)

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Justice Matthews concurs.



Concurrence Opinion

Mr. Justice Holloway:

I concur in the result only.

Mr. Chief Justice Brantly:

I do not concur in the result reached in the majority opinion. -Section 6128 of the Revised Codes declares that every transfer of personal property, such as the one in question here, “is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued *245change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession,” etc. As I view it, the evidence shows that at the time of the transfer to the bank, Woolston was the owner' and in exclusive possession of the garage and its contents; that Holland had then retired from the firm, having turned over his interest to Woolston; that, when the transfer was completed, the bank authorities arranged with Woolston to resume possession of the garage and its contents and to continue the business under the name of Woolston & Company for the benefit of the bank; that he did so, and that no notice was given of this arrangement either by Woolston or the bank until after the attachment was levied. To a stranger not cognizant of what had taken place, there was nothing to show any change of possession. ’ In my opinion, this did not meet the requirement that the sale, to be valid, must not only have been accompanied by an immediate delivery but also followed by an actual and continued change of possession.

Mr. Justice Hurly concurs in the above dissenting opinion.