15 Minn. 381 | Minn. | 1870
By the Court. This case was tried before George L. Otis, Esq., as referee, whose findings of fact, so far as material to be considered here, are as follows: On the 5th day of February, 1867, plaintiff recovered judgment against defendant Rogers in the district court for Dakota county for 15,380.50; on the 24th day of April, 1867, execution was issued, and on May 4th, 1867, duly levied by the sheriff of said county upon seven hundred and eighty barrels of flour, as property of Rogers, which was taken into possession by the sheriff, the value of the' said flour at the time of the levy being $10,138.00. At or about the time of the levy, Rogers made an application to vacate the judgment, and while the application was pending, and about May 20, 1867, Rogers applied to the sheriff, who was then holding the flour under the levy, (proceedings upon the execution having been stayed pending the application to vacate, the judgment,) and represented to him that flour was declining, and proposed that some arrangement be made whereby the flour should be given up that it might go forward to market. Rogers at the same time offered to give the sheriff a draft sufficient in amount to cover the execution, and all costs and expenses thereon, in case the flour was released. The sheriff without consulting the plaintiff, but acting wholly on his own judgment and discretion, acceded to the proposition, and received a good draft drawn by W. 3L Rogers & Go., a firm composed of defendant Rogers, and one Vose, and procured by said Rogers, which by the consent of the sheriff and Rogers was deposited with one Howes, who was instructed to hold the same until the pending application was determined, and if it was denied,' to collect the draft and apply so much of the proceeds as might be required to the satisfaction of the execution and its costs. Thereupon, and as a part of the arrangement, the
Dated the 14th day of Hay, 1867.”
(Signed, &c.)
'Subsequently, and at the July term 1867, the judgment appealed from was affirmed in the, supreme court. After-wards and about February 3rd, 1868, Bogers applied to the sheriff to have the draft delivered up to him, offering to
This action is brought upon the appeal bond, before mentioned, and the referee finds, as a conclusion of law, that the plaintiff is entitled to recover the amount of the judgment appealed from, together with interest thereon and costs and disbursements, and orders judgment accordingly.
The defendants claim that the referee is not sustained, by the evidence, in finding that the flour levied upon and the draft were delivered up to Rogers, the defendant, by the sheriff Newell; the sheriff testifies positively that they were delivered to Rogers, so that it could hardly be said that the referee’s finding is in this respect unsupported. But even if the facts were (as contended by defendants,) that they were delivered to W. K. Rogers & Oo., we do not perceive that the effect of the delivery would be different from the effect of a delivery to Rogers, inasmuch as it is not disputed that they were delivered up at the instance of and by the con
But it is urged, that the testimony tending to show that the flour had been released from the levy, was improp.erly admitted, and the objection is placed upon the ground that the testimony went to contradict the return of the sheriff upon the execution. As to this point, however, wo
The effect of the return, so far as it is material to be considered here, is that on the 4th day of May, the property was levied upon, and that at the date of the return, the 14th day of May, thé levying officer had the same in his possession. As remarked by the court below, if the return had not contained the latter statement, the presumption would be that the possession acquired by the levy continued to exist; but as there is no rule of law by which this presumption is made conclusive,- it would, like presumptions of fact in ordinary cases, be disputable. There is no reason, as we conceive, why the presumption of possession continued after May 14th,(the date of the return,) should be any less disputable, or more conclusive, than the presumption of possession arising from the fact of levy. Then to show that the possession presumed from the levy on the 4th of May, or from the statement contained in the return, on the 14th of May, had been released, and had ceased to exist on the 20th of May, is not to cowüradiot the sheriff’s return, bnt only, at most, to rebut a presumption, which, because it is not conclusive, may be disputed.
It is, however, urged by the defendants, that as it was in the power of the sheriff to change or amend his return at any time before the execution ivas in fact returned into the clerk’s office, which was in this ease on the 24th day of J une, the return is to be regarded as' asserting that on that day the sheriff was in possession of the flour. It is difficult to see why this is important,- inasmuch as the appeal bond upon which this action is founded was made and entered into upon the 13th day of June, before the execution was returned to the clerk’s office, and therefore the defendants
We do not deem it necessary to enter upon any extended discussion for the purpose of showing, that as the levy upon the flour did not operate to satisfy the judgment and execution as to Sogers, so it did not operate to satisfy the same as to his co-defendants, who are sureties upon the appeal bond. At the time when they executed the bond they were bound to inquire into the condition of affairs affecting their rights and liabilities, and the levy upon the flour having been released at that time, they must be presumed, as to the plaintiff, to have known that such was the fact. Under analagous circumstances a levy was held not to discharge the sureties upon the appeal bond in Bennett vs. McGrade supra, to which we refer.' In that case the property levied on liad been left by the levying officer in the possession of a firm composed of the execution debtor, McGrade, and one Seifert, and had been subsequently, and after the making of the appeal bond, disposed of by McGrade, all without any assent upon the part of the plaintiff in the execution, and in an action upon the appeal bond it was held that the levy did not operate as a satisfaction, either in favor of McGrade, or of his sureties upon the appeal bond.
In the case at bar, the property levied on was released,
As between the plaintiff and the sureties, we discover no equities in favor of the latter. So far as the taking of the bond of indemnity is concerned, the defendants do not appear to claim, and we perceive no ground upon which they could claim, that it should operate to satisfy or suspend their liability upon the appeal bond. It follows also from
The flour having been released from the levy, and having been given up, as well as the draft, there was no longer a subsisting levy, and no occasion to issue any writ of execution for the purpose of establishing that fact.
This disposes of all the important points made by the defendants, and the result must be an affirmance of the order denying a new trial.
Ordered accordingly.