Decker v. Armstrong

87 Mo. 316 | Mo. | 1885

Henky, C. .T.

The plaintiff, in her petition, alleges that she was the head of a family and owner of three hundred bushels of wheat and no other property, and that defendant, Armstrong, as sheriff of Franklin county, on an execution in favor of his co-defendant, Robinson, issued on a judgment in favor -of Robinson against, her, levied upon said'wheat, which was exempt from execution, and sold it to satisfy said execution, knowing that •she was the head of a family, and that she owned no •other-property.

The defendants answered, denying plaintiff ’ s ownership of the wheat, and averring that, when levied upon, if was the property of plaintiff Robinson, and by mistake of Robinson and his attorneys the sheriff was -directed to levy upon the same. On motion, the court struck out the answer. The cause was then tried and the evidence for plaintiff was the sheriff’s return on the -execution, to the effect that on the twelfth day of August, . 1880, he levied it upon the wheat in controversy, as the property of Mrs. Decker, the plaintiff, and on the thirtieth of August, 1880, sold it to one North for two hundred and sixty-four dollars, which, after deducting $15.80 -costs, was credited on the execution. There was, also, ■evidence to prove that the value of the wheat was two hundred and sixty-four dollars. Plaintiff obtained a judgment for two hundred and sixty-four dollars, from which defendants have appealed, and the only question for determination is whether, in this action, defendants-can deny the plaintiff’s ownership of the property in ■controversy.

That the return of a sheriff upon mesne or final process is conclusive upon the parties to the suit, as a general proposition, is a rule settled by the authorities. Freeman on Executions, sec. 364; Stewart v. Stringer, 41 Mo. 400 ; Jeffries v. Wright, 51 Mo. 215; Burgert v. Borchert, 59 Mo. 80; Phillips v. Evans, 64 Mo. 17. The return of a sheriff upon an execution cannot be collaterally assailed, but by this it is’meant that, so far as that particular cause is concerned, nothing can be alleged .against the- validity of the judgment, by the parties to the suit, which is contradictory of the return; nor can any rights acquired under such judgment be divested or ■disturbed by disproving the return of the officer, either upon, the writ of summons or the execution. There is, however, no public policy to be subserved by giving to such official acts any greater force and effect than this, while great injustice, as in this instance, might result from giving the principle a more extended application.

The proposed contradiction of the return in the case at bar will not affect any right of the defendant in that execution the plaintiff here acquired under the execution. It will not revive the debt against her, extinguished by the sale of the wheat in question, and the application of the proceeds to her credit; nor in any collateral proceeding can the debt thus extinguished ever be revived against her. By her demurrer to the answer she admits that the wheat was not hefs — admits that it was the property of the plaintiff in that execution, and yet invokes the doctrine of the conclusiveness of the sheriff’s return, not to protect her in any right she derived by virtue of the proceedings in that cause, but also to enable her, after having had her debt satisfied by the sale of her creditor’s property, to recover from him and the sheriff the value of that property. It seems to me that the statement of the proposition carries with it its own refutation, and such an application of a doctrine, salutary within its proper bounds, would work such manifest injustice that it cannot be that the law will allow it. Fuller v. Holden, A Mass. 498; Tyler v. Ulmer, 12 Mass. 167.

The judgment is reversed and the caq§e yeipsijided.