5 Colo. App. 330 | Colo. Ct. App. | 1894
delivered the opinion of the court.
On the 1st of August, 1892, Graham, the appellant, sued Evan E. Reno to obtain a money judgment. He took the
It is almost superfluous to decide some questions which counsel argue, since if the court be right concerning its conclusions respecting the levy, the suit might be finally disposed of without their determination. It is not easy to see how Graham can be held responsible for Morgan’s acts in directing the sheriff to levy on property which belonged to Charles Reno, and in which his brother Evan had apparently no interest. The authorities seem to hold the principal is not liable for these unauthorized acts of the attorney. Welsh et al. v. Cochran et al., 63 N. Y. 181.
It is impossible for the plaintiff to support his position that he may possibly have a right to maintain his suit on the theory of slander or defamation of title. His action was not so conceived, and the complaint lacks the allegation, and the record is without the proof of malice, which is a prerequisite to a successful suit for the slander of title. Kendall v. Stone, 5 N. Y. 14; Andrew v. Deshler, 45 N. J. L. 167.
The fundamental question, however, lies deeper in the structure of this suit than do any of these matters. Wherever the wrongful levy of a writ of attachment is the gravamen of a suit, the burden must of necessity be with the plaintiff to show that in fact a levy was made, unless it concerns personalty, and there be some circumstances of dispossession or disturbance of the owner’s rights which will sustain a suit. Where, as in this case, the levy is on realty, it is evident that what is done must, under the statutes and the law, amount to an actual paper levy to warrant the suit because of the attaching creditor’s wrongful act. Our statute concerning attachments — section 104, code of 1887 — and the preceding section 97 definitely indicates what the officer must do to make his paper levy. According to the terms of the last section, the writ must direct the sheriff to serve it on the defendant. This he did not do in the present case. By the terms of the first section, two methods are provided for the attachment of real estate. Since the first only concerns an
These authorities very clearly sustain the position that there must be a strict compliance with the statutory provision to make a levy valid and a lien upon real property. Since this is true, it must necessarily follow that what was done did the plaintiff Reno no harm, neither obscured nor clouded his title, and if it be an injury at all, it is what is well known as damnum absque injuria.
The evidence likewise discloses the fact that no harm came to Reno by reason of the levy. He proved no actual damage, nor did the failure to complete the trade proceed from the attachment. The case of Kendall v. Stone, above cited, very clearly holds that where it appears the parties abandon their contract, and there is no refusal on the part of one to take because of the attack on the other’s title, and the pro
For these reasons, it is manifest the judgment of the court below was wrong, and must be reversed.
iReversed.