4 S.D. 441 | S.D. | 1893
This is an action in claim and delivery, in which the plaintiff, Griswold, claims of the defendants, who are the sheriff and deputy sheriff of Minnehaha county,, the possession of a quantity of merchandise which was taken from said Griswold by them by virtue of a writ of attachment sued out in an action wherein one Jacob Haish was plaintiff,' and one W. I. Sibbison was defendant. The facts, as they appear from the record, are, in substance, as follows: On the 9th day of April, 1891, W. I. Sibbison had a stock of merchandise at Dell Rapids, S. D. About that time Jacob Haish commenced an action against the said Sibbison for the purpose of enforcing the collection of a debt which Sibbison owed Haish. Soon after the action was commenced Sibbison sold the stock of goods to the plaintiff Griswold, and he took possession of them. On the 20th day of April Haish procurred a writ of attachment and placed it in the hands of the defendants, Sundback and Lund, who were, respectively, the sheriff and deputy sheriff of Minne
The appellants have made numerous assignments of error, which may be considered under the following propositions: (1) Did the defendants, by giving the redelivery bond, estop themselves from showing that they were not in possession of the property claimed by the plaintiff at the time of the commencement of the suit. (2) Did the turning over of the property to a third party by the officer, after he had received it by virtue of .the redelivery bond, constitute an abandonment of the levy under the attachment? And, if so, did such abandonment relate ■back to the commencement of the action, and render him a trespasser from the beginning? (3) Did the court err in eliminating the question of fraud in the sale of the goods from Sibbison to Griswold, the plaintiff? (4) Should the question as to who. was in possession of the goods at the time the attachment was served have been left to the jury, the evidence being conflicting as to the fact? (5). Was the court in error in not charging the jury that the burden of proof was upon the plaintiff, as requested by the defendants?
It appears from the record that there was some contention as to the exact amount and kind of the property taken by the sheriff on the writ of attachment, which was sought to be re- ■ covered by the respondent from this officer. The return of the officer upon the writ of attachment contains the following statement: ‘Thereby certify and return that I made said seizure and levy, and served said warrant of attachment, affidavit and-.undertaking, as sheriff of said county of Minnehaha, under and by virtue of the annexed warrant of attachment, and that the annexed inventory, marked “Inventory A,” is a just and true inventory of all the property so seized.” Then follows an in- . ventory of property, containing many articles usually found in
As to the second question in the case, viz. did the defendants and appellants, by turning over the goods to a third party after they took them, under the redelivery bond, become trespassers from the beginning of the action? An officer can only defend against an action for damages for taking the property of another by showing that he holds such property by virtue of some legal process. When he has thus taken property, he must keep the property so seized by him, or the proceeds of such as has been sold, to answer any judgment which may be obtained in such action. Section 5000, Comp. Laws. A condensed summary .of the rules concerning the relation of an officer to property seized by him under attachment is thus given by Isham, J., in Braley v. French, 28 Vt. 546, as reported in a note found on bottom of page 274 of Drake on Attachment. The learned judge says: “In the attachment of personal estate, the officer acquires a special property, and the right to its custody and possession. For any wrong to it, the right of action is in the officer, as, in any termi
As to the contention of appellants that the question of fraud should have been left to the jury, we would say that the right to litigate that question depended entirely upon whether they had any lien upon the property by virtue of the writ of attach•ment, or not. We have already decided in the case that his lien of attachment was lost when the possession of the goods was given to the plaintiff in the attachment by the officer holding the property. It is clear that creditor cannot attack a conveyance merely upon his contract. He must either have an attachment or execution when he seeks to attack a conveyance of personal property, or a judgment or a bill in equity as to real estate. The question of fraud cannot be litigated by any person who has no interest in the property. No mere outsider, or person having no lien either by contract or process, can litigate any question of fraud arising upon the purchase or transfer of property by other persons. The defendants, having
The appellants also claim that the question of who was in possession of the goods at the time of the commencement of the action should have been left to the jury. We fully agree with the appellants that, in actions to recover the possession of personal property, the plaintiff, if he recover, must do so on the strength of his own title. By an examination of the record it will be seen that Griswold, the plaintiff, testified that he had purchased the property, and bad received a bill of salé of the same from Sibbison, and had taken possession of it. This was sufficient to maintain the action, and this fact was not seriously controverted by other testimony. Upon this fact there was no’ conflict that could rightfully have changed the verdict.
As to the refusal of the court to charge the jury that the burden of proof rests upon the plaintiff, if error at all, it was harmless, because the court had already charged them that the taking of the goods from the plaintiff was wrong, and that the only questiou for them to decide was the value of the goods, and the damage for the wrongful taking; this charge virtually saying to the jury, ‘‘The plaintiff has established his ownership and right to possession.” If this were so, it would have been surplussage to have given the charge as requested by the appellants. Having reviewed the case at what may seem an unnecessary length, and finding no material error in the ruling of the court below, the judgment will be affirmed.