Elmore v. Hill

| Wis. | Jan 15, 1879

Lyost, J.

If the answer shows a legal excuse for the failure of the defendant sheriff to seize the property of the judgment debtor by virtue of the execution, before the property was placed beyond his reach by the sale and assignment thereof, or if the answer sufficiently denies the validity of the judgment, it states a defense, and the demurrer thereto was properly overruled. Otherwise the demurrer should have been sustained; for the answer states no other defense.

I. The degree of diligence required of a sheriff or other officer, when an execution is placed in his hands for collection, has been much considered by the courts. The result of the adjudications on the subject seems to be, that, on receipt of the execution, in the absence of specific instructions, the officer must proceed with reasonable celerity to seize the property of the debtor, if he knows, or by reasonable effort can ascertain, that such, debtor has property in his bailiwick liable to seizure on execution. The officer must do this as soon after the process comes to his hands as the nature of the case will admit. If he fails to execute the process within an apparently reasonable time, the burden is upon him to show, by averment and proof, that his delay was not, in fact, unreasonable. Railing this, he must respond in damages to the party injured by his negligence. Many facts and circumstances may exist, which would authorize a jury to find that delay in a given case was reasonable, -when, if unexplained, the court would not hesitate to hold as a matter of law that it was unreasonable. On this subject generally, see Freeman on Executions, §§ 107, 252, and cases cited in notes. ,

"Where negligence conclusively appears, whether by averment or proof, the court must so hold. In such case there is no question to be submitted to the jury. Goldstein v. Railway Co., ante, p. 404. In the present case, we should have no difficulty in holding that an unexplained delay of four days after the sheriff received the execution, before he attempted to make a seizure under it — the debtor having property during all that time, known to the sheriff and accessible to him, out of which the execution might have been satisfied, — is a negligent delay, if the debt is thereby lost. Hence, the burden is upon the sheriff to aver and prove facts which will explain the delay, and thus relieve him of the imputation of negligence. .

The question then is, Do the allegations of the answer, if true, show that the delay of four days in making a seizure under the execution was a reasonable delay? Or, stating the question in another form, Is the delay — which was apparently for an unreasonable time, and which, unexplained, must be held to be negligence — explained or excused by the averments of the answer? We think the question must be answered in the negative. The only averments of fact which in any manner might tend to excuse the delay, are, that when the defendant received the execution, the circuit court for Fond du Lac county was in session, and lie was engaged in the discharge of his duties as an officer thereof; and that he placed the-execution in his files for service, in the regular order of receptioii, hut, by reason of his official duties, before he reached it in its order, and before he was able' or had an- opportunity to serve it, the execution debtor sold and assigned all of its property for the benefit of its creditors, and he was unable to collect the execution. The averment that his failure to execute the process was without fault, negligence or omission on the part of the defendant, is a conclusion drawn from the facts therein-before stated.

It is noticeable that the time during which the circuit court remained in session after the defendant received the execution, is not stated in the answer. The court may have adjourned without day, within an hour after he received the process, and still the averment would be strictly true. Neither is it directly stated, that the defendant had other writs in his hands for service when he received the execution, although that may, perhaps, be implied. But as to the number of such other writs, the time required to serve them, or the necessity for speedy service, the answer is silent.

The statute authorizes the sheriff to appoint as many deputies as he sees fit, to assist him in the discharge of his official duties, whether in or out of court. One object of this grant of power undoubtedly is to secure speedy service of process. Although the statute required the sheriff to attend upon the, circuit court for his county when in session, it required him to do so in the same manner that it required him to serve or. execute process, that is, in person or by his under-sheriff or-deputies. R. S. 1858, ch. 13, sec. 103 (Tay. Stats., 321, § 148). "We are aware of no statute which required the defendant to remain in constant personal attendance upon the circuit court, when in session, and, practically, we know that such personal attendance of the sheriff is frequently, perhaps usually, unnecessary. But even were his personal attendance upon the court necessary, no good reason is alleged why the defendant did not send a deputy to make a levy by virtue of the plaintiff’s execution. Hence, were it averred that the court was constantly in session while the defendant held the execution, we should be constrained to say that this fact, standing alone, does not excuse the delay in executing the process.

The same remarks are applicable to the averment (if there be one), that the defendant was delayed in the service of the execution by reason of his having received other process for service before he received the execution.

Our conclusion upon this branch of the case is, that the answer fails to state facts from which a jury would be authorized to find that the delay of the defendant to seize the property of the debtor to satisfy the execution was not negligence.

II. As to the averment in the answer, that the defendant has no knowledge or information sufficient to form a belief as to whether the execution was issued upon a regular and valid judgment, a few observations must suffice.

It is competent for the defendant to controvert the validity of the judgment. Mere irregularity will not defeat the action; but ir is a perfect defense thereto if he can show that the judgment is void. ■ The complaint substantially alleges a valid judgment, and it is attempted to put the allegation in issue by a denial, in the answer, of knowledge or information thereof sufficient to form a belief.

Although this is an authorized form of denial, the light to employ it is by no means absolute or universal. Says a learned writer, “ If the fact charged is evidently within the defendant’s knowledge — as an act done by himself and within the period of recollection, or where he has the means of information,— a denial of information in the language of the statute would be clearly false or evasive, and such an answer should be disregarded.” Bliss on Code Pleadings, § 326. See also cases cited in brief of counsel for appellants.

The execution which the defendant had in his possession, informed him of the existence of the judgment. It showed prima facie a valid judgment. The judgment was a public record in the defendant’s county, and in the court of which he was an officer. So, also, were the proceedings in the action preliminary to the judgment. It was his duty to examine the record, and ascertain for himself whether the judgment was valid or not, and to answer accordingly. We think no well considered case can be found, which, in like circumstances, sanctions the form of denial here employed. Indeed, this form of denial in such a case would be destructive of that cardinal principle in any proper system of pleading, that the pleadings must, as far as practicable, state the actual controversy between the parties. It must be held, therefore, that the answer contains no sufficient denial of the validity of the judgment.

It follows from the views above expressed, that the answer fails to state any defense to the cause of action stated in the complaint, and that the demurrer thereto should have been sustained.

By the Court. — Order reversed,, and cause remanded for further proceedings according to law.