Lackland v. Owings

35 Mo. 506 | Mo. | 1865

Dryden, Judge,

delivered the opinion of the court.

This was a suit in the nature of an action of trespass de bonis asportatis. Owings, the appellant, having an execution against one Keyes, caused the sheriff of St. Louis county to levy and sieze thereon a lot of chairs, as the property of Keyes, found in his custody, but which were in fact the property of Regor, the respondent. Regor made his claim in writing, under the provisions of the act of the General Assembly prescribing the duties of sheriff and marshal in St. Louis county touching the - levy and sale of property claimed by third persons. (Sess. Acts, 1855, p. 464.) The sheriff thereupon demanded of Owin'gs a bond as required by the act, but Owings declining to give bond the sheriff offered to return the property, but Regor refused to accept it and brought this suit to recover damages, as well for the value of it as for the alleged taking-, and was permitted to recover accordingly. The only question presented in this court is whether, under the facts as stated, the value of the goods was legally the measure of recovery or an element of the respondent’s damages.

The local act provides: “ § 1. When any sheriff, marshal, constable, or other duly authorized officer shall levy any execution or attachment on any personal property, and any person, other than the defendant in such execution or attachment, shall claim such property or any interest therein, such officer may demand of the plaintiff or his agent in such execution or attachment, a sufficient indemnification bond with at least two good and sufficient securities, to be approved by such officer, and may refuse to execute such execution or attachment until such indemnification bond be given.” It is further provided: “ § 3. No claim made to any personal property levied on as aforesaid, shall be valid or lawful as against such officer, unless such claimant or his agent shall set forth his claim in writing, verified by the affidavit of such claimant or his agent, describing the property claimed and stating his interest therein, and whether it is the whole or only part thereof, and stating also that he is, in good faith, the lawful owner of the interest claimed by him in said property; that the defendant in such execution or attachment has no right or title, directly or indirectly, in the interest in said property claimed by said claimant, and that said claim is not made in collusion with said defendant for the purpose of vexing, hindering, or delaying the plaintiff in obtaining his just rights.” The remaining sections of the act relate to the form and conditions of the bond, the proceedings which the claimant may have thereon, and to the exemption of the officers from liability for the trespass, as a consequence of the giving bond.

There is no dispute that at common law, where a chattel is tortiously taken from the owner, he is not bound to receive it back against his consent, but at his option he may proceed against the tortfeasor, either for the specific property taken or for its value in damages.

The party injured can be deprived of his choice of remedies by no act of the trespasser; but may he not by his own act deprive himself of that choice ? is the question. An owner of property wrongfully siezed on execution or attachment is not obliged to claim under the statute. He may stand upon his common law rights and trust to his common law remedies, if he will; but if he appeal to the statute, claiming its benefits, he must submit to its burdens. The primary object of this local law doubtless was indemnity to the officer"; but another purpose was to obtain for the owner of a chattel wrongfully t siezed on legal process, a speedy return of his property, or, in default thereof, ample indemnity for its loss. This was to be accomplished through a claim in writing to the levying officer, duly verified by the claimant. When a claim is thus made, a creditor is justified in supposing it is made in good faith, and that the choice is tendered to him either to give the bond and avail himself of the property, or to decline giving it and suffer the property to be restored to the owner. If he accept the last alternative, the property, as a consequence, is put beyond his reach, and the officer is exonerated. Upon the theory of the court below, this is a sacrifice for which the law malees no compensation. . We think otherwise. As the respondent, by preferring his claim under the statute, induced the appellant to forego the advantage his levy gave him, there is no hardship in holding him bound to accept what the appellant had thus, upon his demand, yielded. . On the other hand, it would be grossly unjust to the appellant, after having thus acquiesced in the respondent’s claim, and given over his advantages, :still to be held responsible in the same degree as if he had adopted the opposite line of action.

We think the value of the property siezed in this case was not the measure of recovery, and that the court below erred in its instruction in this regard; and for this cause the judgment is reversed and the cause remanded,

Judge Bay con-c lining.