17 Mo. App. 693 | Mo. Ct. App. | 1885
delivered the opinion Nf-fhe court.
The question for decision arises upon the following agreed case : The Samuel Bowman Distilling Company, Gilbert Elliott, assignee of Samuel Marks, and Samuel Bowman, receiver, all of the city of St. Louis, Missouri, being parties to a question of difference, which might be the subject of a civil action, do hereby agree, without action, upon a case containing the facts upon which the controversy depends, and do hereby agree to present a submission of the same to the circuit court, city of St. Louis, Missouri. 1. And the parties hereto-agree that the facts of their case are as follows: That on the fifth (5) day of June, 1883, one Samuel Marks, doing business as Samuel Marks & Co., in the city of St. Louis, Missouri, did execute a general deed of assignment to Gilbert Elliott as assignee for the benefit of all of his creditors, which said deed of assignment was duly
“Isaac M. Mason, Sheriff.
“ByJ. P. Mielert, Dpy.”
That at the time said levy, as above recited, was made, the said safe so levied upon was closed and locked; that said safe remained so closed and locked; and the contents unviewed by the sheriff for more than twenty-four hours after said levy. That not until the lapse of twenty-four hours after said levy was the said sheriff able to open said safe and view the contents thereof for the first time. That said safe was locked by means of a combination lock, the numbers of which were unknown to said sheriff, so that he was unable to unlock said safe, and that the sheriff required the aid of an expert locksmith to
Upon the foregoing case the circuit court gave judgment for the defendants, and the plaintiff now prosecutes a writ of error.
Two questions arise upon this record: 1. Whether the levy operated as a levy upon the contents of the safe from the date when the sheriff seized the safe and took it into his possession, or from the date when he succeeded in getting the safe open and making himself acquainted with its contents. 2. If the levy was operative as a levy upon the books of account contained in the safe from the date when the safe was first seized'under the writ, whether it was also operative as a levy upon the debts evidenced by such books of account; or whether a notice by a receiver to the respective debtors was necessary to effectuate the levy as a levy upon the debts.
I. Upon the first question the court is of opinion that the levy upon the safe and contents was an effectual levy upon the books of - account within the safe from the time when the safe was actually seized by the sheriff. The authorities cited for the opposing view go merely to the extent of holding that, in order to make a valid levy upon personalty, the goods must not only be within the view of the officer, but there must be an actual manucaption, together with such oral declarations or other proceedings as would fully apprise all persons interested of the extent of the levy. — Douglas v. Orr, 58 Mo. 573; Newman v. Hook, 37 Mo. 207; Yeldell v. Stemmons, 15 Mo. 443; Sams v. Armstrong, 8 Mo. App. 573. This is in conformity with the definition of the word “ levy” as used in our statute relating to executions, which “shall be considered to mean the actual seizure of property by the-officer charged with the execution of the writ. ” Rev. Stat. Sect. 2357. In this case the sheriff, by an actual seizure which purported to be a seizure not only
II. Upon the second question, the court is of opinion that the physical levy upon the books of account within the safe operated as an inchoate levy upon the debts evidenced by those books of account. We are not cited to any direct adjudication upon the question in this state, but it seems to be concluded by the language of the applicatory statutes. Section 416, Revised Statutes, which relates to the levy of attachments, declares: “Under an attachment, the officer shall be authorized to seize, as attachable property, the defendant’s account books, accounts, notes, bills of exchange, bonds, certificates of deposit, and other evidences^ f debt, as well as his other property.” Section 420, wjrs/Jl relates to the manner of serving the writ contains the xoiiowing provisions: ‘ ‘ The manner of serving writs of attachment shall be as follows : * * IY. When goods and chattels, moneys or evidences of debt, are to be attached, the officer shall take the same and keep them in his custody, if accessible; and if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summon such person as garnishee. Y. When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he
The judgment of the circuit court will be affirmed.