Ela v. Welch

9 Wis. 395 | Wis. | 1859

By the Court,

Paine, J.

This case presents but one question. That is, whether a sheriff, having levied on personal property by an execution, which, before sale, is superseded by bail on error, is liable to an action for returning the property to the judgment debtor. The counsel for the plaintiff in error contended that the effect of the supersedeas was simply to stop proceedings, leaving every thing in the precise condition existing at its service; and that the levy having been previously made would continue, and it would be the duty of the officer to detain the property. A number of authorities were cited, showing that at common law a writ of error, if served after a levy made, would not prevent the officer from proceeding to a sale, and that the effect was the same after the statute requiring bail on error. Among these, the case of Beatty vs. Chaplaine, 2 Har. & John. Rep., 7, contains a very elaborate examination of the whole subject. But these authorities go too far for the purposes of the plaintiff in error here. For they hold that the officer must proceed to sell, notwithstanding the supersedeas, upon the ground that an execution is an entire thing; and when partly served it must go on without being interrupted. But it is conceded that our statute does stay the proceedings, and that after the supersedeas, even though there has been a levy, yet the officer cannot sell, or take any further steps in the matter. Applying therefore the reasoning in these decisions to the conceded effect of our statute, it would seem that the entire execution must fall. For if being partly served, it must be so entirely, notwithstanding a supersedeas, on the ground that it is an entire thing; by the same reasoning it would follow that when our statute partly destroys it, it must annul it entirely because it is an entire thing.

But without entering into any very critical examination of the authorities, we think this question is to be determined by the obvious intention of the provisions of our statute. Sec. ,2, chap. 104, of the Revised Statutes of 1849, provides that “no writ of error shall operate to stay or supersede the execution,” unless bond is given, &c. The implication is clear that if the bond is given it shall supersede it. And to supersede is to make void or inoperative by a superior authority. Sec. 4 provides that if the bond is given and approved as required, if execution shall have been issued, upon serving on the officer a certificate of the clerk to that effect, “all further proceedings shall be stayed.” There may possibly be a stay of proceedings on an execution which would not amount to a supersedeas. But, taking both these sections together, it is clear that the stay of proceedings provided for in the fourth section is intended to have all the effect of a supersedeas upon the execution, and that this section was enacted to remedy the very evil arising from the decisions to which we have referred.

When the statute required bail on error to stay proceedings, it intended that as the security for the judgment. If the plaintiff has issued no execution, he cannot issue one. Why? Evidently because the statute intended to enable the defendant to protect his property from seizure, by giving what it deemed adequate security. But notwithstanding this statute," the courts held that if the plaintiff had issued his execution and seized the property first, then it should be sold although bail was put in on error. To remedy this the provision of our statute was enacted. And we have no doubt that when bail has been put in and approved, as required by law, that upon service of the certificate upon the officer holding an execution, its entire effect and operation is destroyed, and it is the duty of the officer to return the property to the judgment debtor. If it were otherwise, the greatest inconvenience and injustice would result. The property levied on might be of ten times the value of the judgment, and yet the defendant would have no means of releasing it. It might be live stock in which event the expense of keeping might, before the determination of the suit, exceed its value. These considerations would seem to preclude the idea that the legislature could have intended, after requiring the party to give ample security for preventing a sale of his property, that the sheriff should hold it on a superseded execution, through all the time to which the “ law’s delay,” might extend the litigation.

Some support for this view of the intention of the statute may be derived from the provisions in respect to liens upon real estate. Here the lien is created by the judgment, yet by the existing law, after a judgment is secured on appeal, a party may, by application to the court, procure a discharge of the lien of the judgment, as against subsequent bona fide purchasers. And the reasons for holding that security on appeal, discharges a levy on personal property, are much stronger than any that exist in favor.of its releasing the lien of a judgment on réal estate. For in the latter instance the possession is not divested, the property is not tied up and made useless to both parties, and there is no danger that the expense of keeping may' exceed its value.

And the view we have taken has been held by other courts. In Walker vs. McDonnell, 4 Smedes & Marshall, 118, the question arose, and the court said the practice had always been in that state, on a supersedeas after levy, to return the property to the defendant. And though they did not deem it necessary to decide it in that case, yet their language indicates that, if necessary, they would have held it legal. In the case of Lessee of Brisbee vs. Hall, 3d Ohio, 449, the question was whether it was lawful for the sheriff to return property to the owner after his execution was stayed by injunction. The court says: “ It was lawful for the sheriff, upon the service of the injunction, to re-deliver the goods to the owner. The injunction bond was substituted for the plaintiff’s security. For the sheriff to retain the goods might enforce a great loss upon him, or upon the defendant, by the natural decay of the goods, by their accidental loss, or by the charge of keeping them, as in the case of live stock. The case is very different from that of a levy on land, which is not perishable, and where the debtor’s possession is not divested by the levy.”

In Eldridge vs. Chambers, 8th B. Mon., 411, the sheriff had returned an execution, “stayed by agreement of parties,” and the question was, whether this return imported a continuance of the levy or not; and in deciding it, the court states Avhat we conceive to be the exact effect of a supersedeas upon an execution. They say: “ Does this return indicate a contin- . uance of the levy, or, on the contrary, the release of the property levied on, and its restoration to the defendants in the execution? When an officer returns an execution levied, and stopped or stayed by injunction or supersedeas, the return imports a cessation of the levy and a release of the property. Why should not a return that the execution, after having been levied, was stayed by agreement of the parties, have the same meaning and effect ? We think it does. The execution of the process is evidently stopped. When its execution is stopped, no further action can be had either on it, or by any other action for its enforcement. The levy ceases, the lien is lost, and the plaintiff has to sue out another execution.”

In Conway vs. Jett, 3 Yerg., 481, it is recognized as proper practice where an execution is enjoined after levy, and security given, to return the property to the debtor. And Hamilton vs. Henry, 5 Iredell, 218, sustains the same rule. And we do not readily see how any other practice could be sustained. No case was cited which explained, and it is somewhat difficult to imagine by what authority an officer would detain property, perhaps for several years, after his writ was superseded and had expired.

The counsel for the plaintiff in error contended that the levy ought not to be held released by a supersedeas, because the bond given was only conditioned to pay the judgment rendered in the appellate court, which he claimed would be only for the costs and damages allowed in that court. But we think this view cannot be sustained. It is obvious, with that construction of the condition of the bond, that in all cases where the supersedeas was served before a levy, the proceedings would be stayed, and yet the plaintiff have no security for his judgment, which the statute certainly never intended. The judgment here, in such cases, is not simply for costs, but it is also for the affirmance of the judgment below, which is a re-assertion of that judgment. And it would be too great a strictness of construction to say, that a bond conditioned to pay the judgment rendered here, would not include the amount of the judgment affirmed.

We think the clear intent of the statute was to provide ample security for the judgment, and then to protect or release the property of the judgment-debtor from execution.

The judgment of the county court is affirmed with costs.