58 Mo. 573 | Mo. | 1875
delivered tlie opinion of the court.
It appears from the record in this cause, that on tlie 14th day of December, 1871, the defendant, Orr, being at the time sheriff of Boone county, and having in his hands a valid exe
On the 18th day of December, 1871, Dorsey executed, according to law, and delivered to the plaintiff Douglas, as trustee, a deed of assignment for the benefit of all his creditors, and on the same day put him in possession of all the personal property described in said deed, including the property mentioned in the return of the sheriff, which was still in the show room of the carriage shop. Plaintiff also took possession of tlie room in which it was stored. It is not pretended that either Dorsey or Douglas knew anything whatever of the alleged •levj’-, prior to or at the time of the assignment. Sometime after the alleged levy, defendant having heard of the deed of assignment, went to plaintiff and de-' rnanded the property in question, and -plaintiff refusing to give it up, the defendant afterwards, about the loth or 18th of .February, 1872, without the authority or consent of plaintiff,
The testimony showed them to have been worth in the aggregate the sum of $700. The cause was tried by the court. The law was correctly declared, but the court found that plaintiff was only entitled to the sum of $30, the surplus remaining after satisfying the execution against Dorsey, and gave judgment accordingly, and plaintiff brings the casehere by appeal.
We are not called upon in this case to pass upon the weight of evidence; that, it has been decided again and again, this court will not do. The question is whether there is any testimony tending to show a levj^ by the defendant. The facts relied upon as constituting a levy, are really undisputed ; but feven though some of'them may be thought to be disputed, the question is, do they, if taken as true, constitute a levy ? A denial by one witness of facts stated by another, upon which a verdict is based, does not present a case in which this court will refuse to interfere on the ground, that we will not weigh the testimony, if the disputed facts when taken as true, do not tend to support the verdict. In this case for instance the testimony of Alexander would seem to negative the statement of the defendant, that he moved one of the buggies. But suppose it to be true, that he did move one as stated by him, does that fact taken in connection with the other acts shown to have been done by him, constitute a levy under our statute. The word “levy” as defined by our statute means actual seizure, that is, the officer must take actual possession of the goods, and this language would seem to exclude all idea of a constructive possession.
There has been much discussion and some difference of opinion as to what constitutes actual possession. It has been said that the true test is, whether enough has been done to
In the case of Camp vs. Chamberlain, (5 Denio, 198-202), cited by respondent’s counsel, the court say: “In order to constitute a valid levy as to third persons, the goods must not only be within the view of the officer, but must be subjected to his control. He ‘ must take actual possession ’ which although the goods are present, can only be done by manual acts, or by an oral assertion that a levy is intended, and which is acquiesced in by those who are present and interested in the question. A levy cannot rest in mere undivulged intention to seize the property. Something more is required. There must be possessory acts to indicate a levy, or it must be asserted by word of mouth, so that what is thus done By the officer, if not justified by the process in his hands, will make him a trespasser.”
This case is cited with approval by the Court of Appeals in Baker vs. Birminger, (14 N. Y., 270). In Gwynne on Sheriffs, Ed. 1849, p. 212, it is said : “The officer should not proceed in so secret a manner as to cut off all probable means, on the part of third persons, of knowing how to deal with the defendant, in respect to his goods. The proceedings should also be such as to apprise the defendant himself of the steps taken, or at least such as not to leave the inference of intentional concealment.” (See also Newman vs. Hook, 37 Mo., 207; Yeldell vs. Stemmons, 15 Mo., 443.) Tested by the rules laid down in these authorities, the acts of the defendant Orr, in relation to the property in question, constituted no levy.
The judgment is reversed and the cause remanded ;