8 Minn. 265 | Minn. | 1863
By the Court
This was an action of re-plevin brought by Defendant in Error, to recover certain personal property alleged to have been wrongfully and unjustly taken and detained by the Defendants, the Plaintiff being the owner and entitled,to the immediate possession of the same. The complaint demanded a return of the property and damages to the amount of five hundred dollars.
The answer denied the material allegations of the complaint, and also justified the taking, as Sheriff and Deputy Sheriff of Namsey county, under a writ of attachment in favor of E. S. Sloan, (one of the Defendants) against one Bdnsberg, alleging that the property belonged to.him. It also alleges that on the 18th day of July, 1859, (more than two months subsequent to the taking,) the Deputy Sheriff released the property from the attachment, and restored the same to the parties in whose custody and possession he found the same when he levied upon it, and notified said parties of such release, and afterwards did not have the property in his possession.
The case was referred to James Gilfillan, Esq., who found title to the property in the Plaintiff at the timo of seizure by Defendants, and found the value thereof $923:85, and damages for the detention to the amount of $201.90, and directed judgment for a return of the property, or in default thereof, the value of the same, and damages. Erotn the judgment entered upon this report, the Defendants sue out writ of error. The writ only brings up the pleadings and report, no exceptions having been taken upon the trial or to the report.
If there is any principle of law which may be considered as entirely settled by a long series of uniform decisions, in the courts botli at home and abroad, it is, that he who, whether an officer of the law, or otherwise, takes the property of another, without authority, is a wrong doer, and the taking is termed wrongful. The principle has its foundation in the very instincts of our nature, and like an axiom, the bare statement of the proposition carries its own proof with it, and scarcely admits of being made plainer by any amount of reasoning. The only approach toward any innovation upon the rule, so far as we are aware, by the courts of this country, is the ease of Freeman vs. Howe, 24 How., U. S. R., in which it was held, that in an action of replevin in the State Court, a plea that the Defendant took the property ás U. S. Marshal, by virtue of process issuing out of the United States Court, should, if admitted, constitute a good defence in that action. But that decision falls far short of sustaining the positionhere assumed by the Plaintiff in Error. Though, if we correctly understand the argument of counsel, it is rather to prove that the law ought to be in accordance with his view,- than that such is now the settled law. He urges that “ as the sheriff made'this leVy entirely upon his own motion, and not at all at th« instance or suggestion of the Plaintiff in the writ or his attorney, we must presume that he did so in good faith, moved solely by his sense of official duty, and upon the best and fullest knowledge and information obtainable as to the ownership of the property ; and that he fully and honestly believed, and had good reason to believe, that the property was the property of the Defendant in the writ, and that accordingly he was in duty bound to levy upon it.” But the law has wisely
"We have not had access to the California cases cited, and are therefore unable to say what rule the courts of that State have adopted upon this question, nor upon what grounds their decisions may be based. Suffice it to say, however, that if their holding is in accordance with the view entertained by the counsel for the Plaintiffs in Error, it does not commend itself to our judgment of law, either as it is or should be; and we must decline adopting such rule, until sanctioned by greater weight of authority, or the legislature has enacted some provision touching the liability of officers levying process, different from any now existing upon the statute books. Chap. 41, Sess. Laws, 1862, cannot be construed, even by inference, as showing the intent of the'legislature- to exonerate the sheriff from the liabilities of a trespasser, where he levies upon property not belonging to the Defendant in the writ, but relieves the officer from making the levy in doubtful cases, unless indemnified by the creditor, — from which it may reasonably be inferred that it was the intention to hold him to the full measure of responsibility. This act it would seem affords the officer all the protection necessary, and, so far as he is concerned, he does not now stand in need of the protection here asked of the Court. The case of Bond vs. Ward, 7 Mass., 128, also holds, that where a sheriff has reason to doubt wher ther goods are the property of a debtor, he may insist on the
The second point of the Plaintiffs in Error must fall with the first, to wit, that the detention of the property by the sheriff under the writ, from the time Arnold asserted his claim to the property, to the time of the release of the levy by instructions of the attorney of the Plaintiff in the writ, was not wrongful. If the original taking was wrongful, the subsequent detention must necessarily have been so also.
It appears that the property taken by the Defendants was, at the time of the seizure, neither in the hands of the Plaintiff in this action, nor in those of the Defendant in the writ, but was taken from the actual possession of some third party, but from whom does not appear. The Referee has found that, on the 18th day of Juty, 1859, the Defendants released their levy upon the goods, and restored the same to the parties in whose custody and possession the same were when levied upon, and then notified said parties ot said release from said attachment, and did not thereafter have the custody or possession of the same. That the sheriff did not notify the Plaintiff of such release, nor deliver said property into his possession, or into the possession of any party authorized to receive the same.
If the sheriff be held as a wrong doer, I cannot see that it makes any difference in regard to his liability whether he offered to restore the property or not, as the Plaintiff was not bound to receive it. But whether an offer to return, or an actual return of the property to the Plaintiff at the time named in the complaint, would have formed any defence or
It is further claimed that the Beferee erred in directing judgment for $201.90 damages, for the reasons that there was no wrongful detention, and that the Beferee has nowhere found, as a conclusion of fact or of law, that said damages
The judgment below is affirmed.