1 Grant 193 | Pa. | 1855
The opinion of the court was delivered
— The defendant’s intestate was sheriff of Somerset county, and had in his hands an execution in favor of the plaintiff on which he levied, and might have sold personal property to
Supposing the present plaintiff to have been entitled to the proceeds of the goods in case they had been sold, the neglect or refusal to sell them, entitles him to recover from the sheriff the value of the goods or the amount of ,his execution, whichever is least. This indeed would be his exclusive remedy, for he could not make a new levy, or demand his debt out of the proceeds of other property, whether real or personal. . But it happens in the present qase that the sheriff had in his hands at the same time an earlier execution, which was levied on the same goods, and large enough to absorb their whole value. The sheriff is not answerable to a junior creditor whose writ is so late that his debt could not in any event have been made. For a misfeasance in his office, like that charged here, each creditor can recover only what he has lost by it, and one who would have got nothing if the sheriff had done his duty, can demand nothing for the breach of it.
This, however, is not the whole of the present case. Gremmell & Co. had the elder execution upon the goods. They also had an early lien on the land of the debtor which was afterwards sold. They did not pursue the sheriff for his misconduct in not selling the goods, but when the price of the land was brought into court, they demanded there debt out of that fund, and got it upon a regular decree of distribution. Of course- this made an end of Gremmell’s claim against the sheriff and he escapes altogether if Hamner, the present plaintiff, cannot hold him.
The argument which denies the sheriff’s liability in this suit, is founded on the "fact that there were other judgments against the land between those of Gremmell and Hamner, the latter standing so far down on the list of liens, that he could not have been reached if the former had been out of the way. It is admitted that if Hamner’s lien on the real- estate had stood next to Gremmell’s, Hamner would have been injured by the sheriff’s neglect to secure- the goods and pay the proceeds to Gremmell, so as to let Hamner in upon the other fund. Btit his claim, there was hope-, less anyhow. It is insisted therefore, that the sheriff has got rid of his responsibility by a piece of good luck, to which he is fairly entitled. Hamner, it is said, was not injured by the neglect to sell the personal property, because Gremmell would have taken the proceeds, and he was not injured by the payment of Gremmell’s debt out of the real estate, because other creditors would have taken the whole of that fund if Gremmell had been cut out. He had no available lien against land or goods, and it mattered nothing to him whether those who had legal rights to the money, divided it according to law or not.
It is certainly true that the present plaintiff cannot succeed to Gemmell’s rights against the sheriff, by any kind of substitution. The equitable principle of subrogation can have no place here. If he had no cause of action at first he has none now. The liability was created when the wrong was committed, and the right to sue on it will not shift about from one person to another. If the injury was against Gemmell, he alone was entitled to the remedy, and the subsequent satisfaction of his debt was an extinguishment of the right of action, not a transfer of it to Hamner. But the true foundation of the plaintiff’s claim is this : that the record before us shows conclusively as a matter of fact, that Hamner himself, and not Gemmell, was the creditor to whom the money made out of the lost goods would have gone.
The case agreed on by the parties, states that the execution of Gemmell went first into the hands of the sheriff. But it does not necessarily follow from this, that he would have the best right to the money which ought to have been made. There are many ways in which he might have been postponed. If he was postponed, he had no right of action against the sheriff, and Hamner had. The whole case turns upon this fact, and it must have been decided when the proceeds of the real estate were distributed.
If Gemmell had a subsisting lien against the personal property in question, at the time when it should have been sold, he had a remedy against the sheriff, to which it was the duty of the court to remit him. A decree that he should be paid out of the land, could have been made only on the fact being proved, or admitted, that the sheriff was not liable to him for his debt.
A judgment, sentence or decree of a court of competent jurisdiction is conclusive evidence of every fact, on which it must necessarily have been founded. Eor instance, we have decided at this term in Oobaugh’s Appeal, that an order for the sale of land by the Orphans’ Court, to pay debts, is evidence that the debts are a lien. But cases need not be cited for so plain a principle. This decree of distribution shows that Gemmell could have had no right of action against the sheriff for neglecting to sell the goods, and consequently no lien upon those goods since; if he had, it must necessarily have defeated his claim upon the fund, out of which he was ordered to be paid.
The sheriff is estopped by that decree. He was a party to it, and had the same notice that other parties had. The decree was against him that he should pay. He was entitled to be heard before it was made, and if ik affected his rights injuriously he might have appealed pro interesse suo. If he was not a party to it in the legal sense of the word, then the decree was an adjudication upon
The judgment of the court of Common Pleas is reversed, and judgment is now here given in favor of the plaintiff, for the sum of $726, being the sum of $550, with interest, from December 1, 1849, with costs of suit.