77 Va. 142 | Va. | 1883
delivered the opinion of the court.
These cases turn upon precisely the same questions of law and fact, and may therefore, for all the purposes of this opinion, he treated as one.
The appellees, Clagett’s executors, and the appellee, Mead’s executrix, moved separately in the county court of Loudoun county for judgments against William F. Barrett, late sheriff of said county, and his sureties as such—that is to say, Clagett’s executors moved for a judgment against sqid sheriff and his sureties for the sum of $1,202.20, with interest thereon from the 7th day of May, 1875'; and Mead’s executrix moved for a judgment, against the same parties, in same court, for the sum of $819.87, with interest from same date. These sums said Barrett had, by a final decree in the case of Barrett, sheriff, against French, Bichards & Co. and als., in the circuit court of Loudoun county, been ordered to pay to said parties respectively out of funds held by him as sheriff.
The facts and attendant circumstances are these: On the 11th day of January, 1871, there issued from the clerk’s office of the circuit court of Loudoun county an execution in favor of French, Bichards & Co. against one Samuel M. Boss for tlje sum of $461.45, and costs. This execution went into the hands of William F. Barrett, then sheriff of Loudoun county, and was by him levied upon the entire stocic of goods in the store-house of said Boss, situated in the town of Leesburg, in said county.
The sheriff had scarcely advertised the goods for sale, under his said levy, when he received notices from sundry persons of conflicting claims upon the goods thus levied on, some from parties asserting that said Boss held certain of said goods as their agent, some others from parties claiming liens by virtue of prior executions which had issued but had not been levied. Bone of them, however, forbade the sale, all were content to
The duty of settling the rights and priorities of so many conflicting claimants proved both tedious and difficult. The contention seems to have dragged its way through a period of about four years. At last, after an account had been ordered and taken to ascertain the rights and priorities of the different claimants, and the same had been twice recommitted and restated without any very definite result, the circuit court of Loudoun, in the most just possible way, solved the whole problem, by holding that the burden of proof was on the junior execution creditor; that the oldest execution was a lien on all
From this decree an appeal was taken to this court, where the case lingered until 1819, when it was dismissed upon a rule to print. By this time Barrett had applied to his own use the fund in his hands, arising from the sale made under his levy aforesaid, and had become insolvent. Inasmuch as Barrett's official bond had been deemed ample, no other security had been required in granting the appeal than was sufficient to meet the costs, and when he had squandered the fund held by him and become insolvent, no remedy was left the appellees, but to proceed against him and his sureties, the appellants.
This the appellees did by motion, after due notice, in the county court of Loudoun, under section five of chapter one hundred and sixty-three of the Code, which reads: “The court to which, or in, or to whose clerk or office, any bond taken by an officer, or given by any sheriff, sergeant or constable, is required to be returned, filed or recorded, may, on motion of any person, give judgment for so much money as he is entitled, by virtue of such bond, to recover by action.''
The appellants, the sureties of said Barrett as sheriff, having been duly served with notice' of the motion, appeared and resisted the same upon the following grounds: (1) That the court had no jurisdiction; (2) that the notice was insufficient by reason of vagueness and uncertainty; and (8) for want of competent evidence—they objecting to and insisting that the record in said chancery suit of Barrett, sheriff v. French, Richards & Co. and others, offered by the plaintiff, was not admissible in
On the 24th day of April, 1880, the circuit court of Loudoun county heard the causes, and reversed and annulled the said judgments of the county court on the merits, and proceeding to give such judgment as the county court ought to have given, rendered a judgment in favor of the then appellants, Clagett’s executors,' and in favor of the then appellant, Mead’s executrix, each for the penalty of said Barrett’s official bond, to be discharged by said sums of $1,202.20, and $819.8*7, respectively, with interests and costs. To these judgments of the circuit court of Loudoun county the appellants obtained a writ of error and supersedeas, .and the cases are now to be finally determined by this court.
The same objections made in the county court, and repeated in the circuit court, are relied upon here. It is important, therefore, to notice them in the order they were made.
Eirst, as to the question of jurisdiction. If the fifth section of chapter one hundred and sixty-three of the Code was in force and unrepealed when proceedings in these cases were commenced in the county court, it is plain that it gives the motion and jurisdiction to hear and determine it to that court, in the clerk’s office of which a sheriff’s bond is required to be, or is, in the particular instance, actually recorded as authorized by law.
As to the motion to quash the notices in these cases, it is only necessary to say the notices clearly informed the defendants of the character and object of the motions to be made, and were in all respects sufficient.
We will next notice the objection by the defendants in these motions, to the introduction, on behalf of the plaintiffs in said motions, of the record in said chancery suit of Barrett, sheriff, against French, Richards & Co., and others. This was a strikingly strange objection to come from the defendants, especially when we reflect that Barrett, as sheriff, instituted that suit and made that record for the avowed purpose of protecting himself as sheriff, as well as the claimants to the fund in his hands, by a decree judicially determining the rights of all the parties, and directing a proper distribution of the fund. It was a matter peculiarly within the province of a court of equity. And when involved as sheriff in the troubles which endangered
In another view, and not in derogation of the salutary principle that every man is entitled to his day in court, the record in said chancery suit was properly evidence prima facie against said sureties, although they were not parties thereto. Munford v. Overseers of the Poor, 2 Ran. 313; Jacobs v. Hill, 2 Leigh, 393; Cox v. Thomas, 9 Grat. 323; Crawford v. Tuck, 24 Grat. 116, and Supervisors v. Dunn, 27 Grat. 622.
There is but one other question raised which deserves notice. It is the claim of appellants that the levy made by Barrett, their principal, was, except as to some five hundred dollars, in value of the stock of goods levied on, made by him by virtue of the prior executions turned over to him by one Smith, a deputy of Summerfield Bolyn, the sheriff of Loudoun county, next preceding Barrett. This, too, rests upon the voluntary statement made by Barrett in his said deposition, given before the commissioner who took the account, in the suit of Barrett, sheriff v. French, Richards & Co. and others. It is to the effect that some $500 in value of the goods levied on had been added to the stock
In his hill in his suit of Barrett, sheriff v. French, Richards & Co., and others, Barrett says that he levied on the entire stock, and sold accordingly. In his return he says that he levied on the whole, and the commissioner who took the account reports the same fact. And throughout the entire record there is no evidence that Barrett sold the goods in question under any levy save his own.
Counsel for the appellants insist, however, that a large portion of the goods levied on were not legally liable; in other words, that it was legally irtlpossible for Barrett to levy upon them, because they say they were in the custody of the law under senior executions in the hands of the preceding sheriff. The claim is not borne out by the record, or any thing therein. If Barrett made an excessive levy, or upon goods in the legal-custody of the preceding sheriff, it is, or was for the parties injured, to complain of such trespass. Surely the appellees could not he kept out of their just rights by the pretence that Barrett, as sheriff, had exercised the important functions of his office as the mere agent, in whole or part, of the preceding sheriff. It is for the purposes in hand enough that Barrett levied upon and sold the entire stock of goods under color oí his office; that the
Affirmed.