67 Tex. 615 | Tex. | 1887
On November 15,1881, Oliver & Griggs sued out a writ of attachment against Bessling & Roller, which was on the same day levied by T. E. Jackson, sheriff of Limestone county, upon a stock of goods in Groesbeck, and op. the next day upon a stock of goods in Mexia. After levying upon the Mexia stock the sheriff returned to Groesbeck, leaving that stock in the storehouse in which it was contained, and its key in charg-e of three persons, with instructions to close the doors and make an inventory of the goods.
Before leaving Mexia the sheriff was told that other attach-
All of the attaching creditors obtained regular judgments upon their claims at the same term of the court.' The sheriff sold the two stocks under order of court, and, after paying off the judgment of Oliver & Griggs, returned the balance of the proceeds of the sale, viz., eighteen hundred dollars, into court; and the present action tests the question as to whether this money shall be paid to Gust Heye & Co. or to W. L. Moody & Co.
The court below held that the goods, when levied upon under the attachment in favor of Oliver & Griggs, were in custodia legis, and could not be attached by another officer, though a deputy of the officer by whom the first levy was made; that the sheriff in possession alone could make such a levy; that the acts of the deputy were not by construction the acts of the sheriff, unless adopted and ratified by him, and that there was no such ratification. Upon this view of the law, judgment was rendered for W. L. Moody & Co., and this appeal is taken by the appellant from that judgment.
It is a general principle that goods attached by one officer, and in his possession, can not be attached by another officer. The question whether it was rightly applied by the court below in the present case depends upon whether the sheriff and his deputy were different officers. Our statutes provide that sheriffs shall have power, by writing, to appoint one or more deputies, who sTia.n have power and authority to perform all the acts and duties
As between the sheriff and the deputy, of course the former can make the latter responsible for such losses or misconduct, but with this the public has no concern. It follows that as to the public, whose servants these officers are, the acts of the deputy are the acts of the principal—the possession of the former is the possession of the latter. So far as the responsibilities of the office are. concerned, the sheriff is liable for the acts both of himself and his deputy; so far as its rights and duties are concerned, they are in every respect identical. This is not only the true construction of our statute, but is clearly the rule at common law. (Bacon’s Abridgement, title Sheriff; Comyn’s Digest, title Officer; Gwynne on Sheriffs, 43; Murfree on Sheriffs, section 18.)
The acts of the deputy are performed in the name of the principal, and they become so essentially the acts of the latter that he may lawfully return that they were done by himself. (Freeman on Executions, sec. 384.) From these principles we can but. conclude that the act of Waller in making the levy upon the Mexia stock of goods was the act of the sheriff, and amounted to the same thing as if he had made the levy himself. As the goods were in the possession of the sheriff under a former attachment, it was of course proper for him to levy the subsequent writ of Gust Heye & Co. upon it, subject to the previous levy of Oliver & Griggs.
We are cited to no authorities by the appellee which sustain, the ruling of the court below, that the sheriff and his deputies are different officers and that the possession of attached goods by the one is not the possession of the other. In the case of Vinton v. Bradford, cited from 13 Massachusetts, 116, it was held, that
If the possession of the deputy is the possession of the principal, it is because they are in the eye of the law, identical in so far as the duties of the office of sheriff are concerned. If so, the acts of the former are the acts of the latter. Waller’s levy of the attachment of Heye & Co. was therefore the levy of Jackson, and was under the authority of law made upon goods in possession of Jackson. It is proper to add that the Mew England cases differ, as to the position which the sheriff and his deputies occupy towards the public, from the decisions of other States, probably on the ground that they are there treated in many respects as if they did not hold the same office. A deputy is liable directly to a party aggrieved by his misconduct; and he and the sheriff can not be sued as joint trespassers, and in at least one of these States process is directed both to the sheriff and his deputy. (Murfree on Sheriffs, secs. 907, 938; Odiorne v. Colley, 2 N. H., 66.)
To hold as the court below did in this case that a deputy can not levy upon goods already attached and in possession of the sheriff would be to deprive the public of the benefit of a deputy’s services whenever a second attachment was to be levied. The goods already attached being in the possession of the sheriff, no matter whether levied by a deputy or not, could not afterwards be subjected to another levy, except by the sheriff himself. Deputies are appointed as well for the benefit of the public as of the principal sheriff, and their powers must not be so construed as to deprive the public of their services in any respect.
It may be added that in this case the sheriff ratified the act of his deputy in making the levy for Heye & Co., and adopted it as his own by filing his return as made among the papers of the cause.
We are of opinion, therefore, that Heye & Co.’s attachment having come to the hands of Waller, the deputy, prior to the time that Moody & Co.’s writ reached Jackson, the sheriff, and having been levied upon the Mexia stock previous to the latter writ, was entitled to priority, out of the proceeds of the goods
As to the assignments of error made by the appellee, it is sufficient to say that the finding of the court to the effect that there was no fraud in suing out the attachment of Gust Heye & Co., is fully supported by the evidence. The note sued on was shown to be even less than the balance due to Heye & Heidenheimer. It is true, the appellants declined to append to their depositions an itemized statement of their account with Bessling & Roller, because the account had been settled and closed by notes. This might have thrown suspicion upon the account, but the settlement was fully explained upon the trial, and the itemized account upon which the settlement was made produced in evidence by the appellants, and shown to be a true and correct statement of the transactions betweén Bessling & Roller and the appellants. The appellees had all the benefit they would have derived from full answers to their questions.
For the errors pointed out the judgment will be reversed', and here rendered for the appellant for the one thousand eight hundred dollars in the hands of the district clerk of Limestone county, less the costs of the attachment suit of Gust Heye & Co. v. Bessling & Roller. It is so ordered.
Eeversed and rendered.
Opinion delivered April 12, 1887.