5 S.D. 111 | S.D. | 1894
This was an action against the defendant, as sheriff of Minnehaha county, to recover the amount of a judgment rendered in favor of the plaintiff, and against one A. S. Kilroy, upon which an execution was issued, and placed in the hands of the defendant, as sheriff, and which he refused to levy upon the property of said Kilroy. Judgment for plaintiff, and defendant appeals.
The complaint states, in substance that the defendant was the sheriff of Minnehaha county; that the plaintiff duly recovered a judgment against the said A. S. Kilroy, upon which an execution was issued, and delivered to the defendant for collection; that said Kilroy had and owned personal property in said county sufficient to satisfy said execution; but that defendant neglected and refused to levy upon said personal property of the said Kilroy, or in any manner to obtain satisfaction of said execution, and returned the same unsatisfied. The answer
Section 6123, Com. Laws, provides what entries a justice’s docket shall contain, and section 6124 provides that “such entries in a justice’s docket or in a transcript thereof, * * * are prima facie evidence of the facts so stated. ” Among the facts so required to be entered are: “(1) The title. * * * (2) The object of the action or proceeding; and if a sum of money be claimed the amount thereof. * * * (4) The time when the parties, or either of them, appear. * ' * * A concise statement of the material parts of the pleading. * * * The judgment of the court. * * *” An examination of the record in this case discloses the fact that the police justice fully complied with the statute, and we are of the opinion that the docket entries were sufficient prima facie evidence to show that the court had jurisdiction of the subject-matter of the action, and of the person of the defendant, by his voluntary appearance and pleadiug to the action, and that the judgment was regular in all respects.
No summons is required to be issued in a justice court in order to give the court jurisdiction, as section 6050of the Compiled Laws (Justice Court Act) provides that “an action is commenced by issuing the summons, or by the voluntary appearance and pleading by the parties.” Therefore when a party appears and pleads, the court acquires jurisdiction of his person. The defendant having appeared ■ and pleaded, by admitting the allegations of the complaint, there would seem to be no necessity for further proof of the plaintiff’s demand, and that proof on the part of the plaintiff -would be thereby dispensed with. But if proof was required, the justice’s court having jurisdiction of the subject-matter, and having acquired jurisdiction of the person of the defendant by his voluntary appearance, this court will presume that the proper proof was
The plain tiff proved that the defendant had in his hands personal property of Kilroy, of the value of about $300, and that defendant had neglected and refused to collect' the said execution out of the same, and rested. The defendant then introduced in evidence the chattel mortgage from said Kilroy to F.
But in the case at bar the evidence introduced has no tendency to vary or contradict the terms of the mortgage. It will be observed that the mortgage, by its terms contemplates the sale of the goods, and it in terms provides that the mortgagor shall remain in possession. The facts proven, therefore, in no manner tended to contradict or vary the terms of the mortgage but were facts existing entirely outside the mortgage agreement. But the rule invoked applies only to parties to the instrument, or parties claiming under or through the instrument, and has no application to parties situated as the plaintiffs are,
It is further contended by counsel for appellant that the sheriff was not required by law to levy upon the property included in the mortgage, for the reason that the plaintiff failed to pay or tender the amount due upon the mortgage, as provided by Section 4389, Comp. Laws. That se ction reads as follows: ‘ ‘Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county treasurer, payable to the order of the mortgagee. ” But we are of the opinion that that section has no application to a mortgage which the creditor claims to be fraudulent and void as against the creditors of a mortgagor. The object of that sec tion evidently is to prevent an officer from attaching and levying upon personal property included in a valid chattel mortgage before the amount due upon such a mortgage is paid or tendered as therein provided. But it has no application to a void or fraudulent instrument denominated a “chattel mort-gage. ” Such an instrument, fraudulent and void as to the creditors of the mortgagor, is not in law a “mortgage” as to them, though it may be so called. To require a creditor, before he can contest a mortgage so claimed to be fraudulent and
In this case it clearly appears that the defendant was required to levy upon the stock of goods of the debtor Kilroy, in the hands of the officer, which the defendant claimed was included in the chattel mortgage. The defendant testified as follows: “I am and have been sheriff of this county for several years past. Exhibit C (the execution) was given to me to execute. I did not collect any part of it. I did not make a levy, because I did not find anything to levy upon. You directed me to levy upon a stock of goods owned by Mr. Kilroy, but it was covered by mortgage. I had the stock in my possession at the time, foreclosing the mortgage as sheriff.” It does not appear from the defendant’s evidence that he demanded any indemnity bond, and we may conclude that none was demanded. The sheriff, therefore, in refusing to levy upon the goods in accordance with the direction of the plaintiff, assumed the responsibility of showing that the mortgage was valid in all respects as a lien upon the property, as against the creditors of the mortgagor, and that he could not have lawfully levied upon the same hefore the amount due on the mortgage was paid or tendered. The sheriff sought to do this by introducing the chattel mortgage from Kilroy to Gould, set forth in the answer. The counsel for respondent contends that this mortgage was fraudulent and void upon its face as to the creditors of Kilroy, the mortgagor. This mortgage was before us in the case of Ayers, Weatherwax & Reed Co. v. Sundback, 58 N. W. 4, and we held it valid upon its face, and prima facie good as against the creditors of the mortgagor. That decision must control this case as to the validity of the mortgage, independent af any extrinsic evidence.
The only question remaining is, did the trial court err in directing a verdict for the plaintiff, or, in other words, was the evidence as to the mortgage being fraudulent and void as to the