30 Minn. 321 | Minn. | 1883
Lead Opinion
Action in the nature of trover for conversion of a stock of merchandise, book-accounts, and other property.
One Hageman had been the owner of the property, but had transferred the property to this plaintiff by a general assignment for the benefit of creditors. The defendant Getman was sheriff of Dodge
This plaintiff commenced this action for such conversion against the sheriff Getman only. Thereafter, upon affidavit alleging the executing of the bonds of indemnity above mentioned, and the executing of a like indemnity bond by Harwood, Durkee, Hopping, and Phillips, the defendant Getman applied to the court for an order requiring all of such indemnitors to be impleaded with him in the action, and thereupon the court so ordered. The summons was then amended by inserting the names of such alleged indemnitors as defendants in the title of the action, and service of the same was made upon such added defendants, excepting Durkee, Hopping, and Phil
After the decision had been made in the court below, these appellants asserted want of jurisdiction in the court to render judgment against them, and the objection is again raised upon this appeal. The objection to the jurisdiction of the' court may be briefly stated to rest upon these two grounds: First, that the statute pursuant to which these appellants were brought in as defendants, does not apply in this case or authorize such proceedings; and, second, that the complaint was never amended, and shows no cause of action against such parties.
The statute referred to we shall have occasion to consider and construe for other purposes than that to which attention is now directed. It reads as follows, (Gen. St. 1878, c. 66, §§ 154, 155:)
Sec. 154. “If any property levied upon or taken by a sheriff, by virtue of a writ of execution, attachment, or other process, is claimed by any other person than the defendant or his agent, and such person, his agent or attorney, makes affidavit of his title thereto, or right to the possession thereof, stating the value thereof, and the
Sec. 155. “If, in such case, the person claiming the ownership of such property commences an action against the sheriff for the taking thereof, the obligors in the bond provided for in the preceding section, and the plaintiff in such execution, attachment, or other process, shall, on motion of such sheriff, be impleaded with him in such action. When, in such case, a judgment is rendered against the sheriff and his co-defendants, an execution shall be immediately issued thereon, and the property of such co-defendants shall be first exhausted before that of the sheriff is sold to satisfy such execution.”
The first objection named to the jurisdiction of the court rests upon a misconstruction of section 155, which makes it to apply only to cases where the attached property has been taken from the possession of the defendant in the writ, and makes it inapplicable where the property was taken from the possession of a third person claiming title in himself. It may be assumed that no service of affidavit (upon the sheriff) was necessary in this case, as a condition precedent to the maintaining of an action against him, for the property appears to have been taken from the possession of the plaintiff himself and not from the defendant in the writs. See Ohlson v. Manderfeld, 28 Minn. 390, and cases cited. According to the most natural construction of the two sections recited, it is only necessary, for the’ granting of the application of the sheriff to have other parties im-pleaded with him, that property levied upon by him shall have been claimed by another person than the defendant in the writ, such claim being asserted by the prescribed affidavit; that the plaintiff shall have
For reasons which will hereafter be more fully shown, the complaint was not defective. The defect, if any, was that the defendant Getman did not plead the facts as to the giving of the indemnity bonds, and showing that these appellants were chargeable for whatever recovery should be had in the action against him. This defect, however, was cured by the separate answer of the appellants, setting forth the facts, so far as not alleged in the complaint, upon which their liability in this action must rest. Rollins v. St. Paul Lumber Co., 21 Minn. 5; Warner v. Lockerby, 28 Minn. 28, 30.
Beading the findings of the court in the light of the evidence, we understand the facts found to be that the sheriff assumed to levy upon the accounts, and did take possession of the account-books; but that no effectual levy upon the accounts or debts was made, because the sheriff did not make the service, required by statute in such cases, upon the' debtors owing such debts. The court further finds that the sheriff “returned on each of such writs of attachment the fact of such levy thereon.” We do not construe the- finding recited in the last
The acts complained of, so far as established by the evidence or found by the court, did not constitute an interference with plaintiff’s title, possession or control of the book-accounts, nor did they amount even to the assertion of any rights respecting them on the part of the sheriff. It is not enough that he may have deemed his acts to have been, not only an assertion and exercise of dominion over the property, but an actual seizure of it under the writs. It was not a conversion. Fernald v. Chase, 37 Me. 289. It follows that the appellants were not answerable for the value of the accounts, for the only acts for which they became responsible did not amount to a conversion.
The sheriff did, however, collect of the accounts the sum of $38.32, which, with the proceeds of the sale of other property levied upon, was applied in satisfaction of the judgments of Harwood, Gotzian & Co., and Wyman & Mullen, and for this sum we think the defendants answerable.
The indemnitors thus became subject to a double liability, but upon different and distinct legal grounds, and to different parties. They were answerable to the owner of the property for the wrongful levy upon and retaining of his property. This liability, arising ex delicto, was enforceable by an action by the owner against them alone or jointly with the officer. Again, they were responsible to the officer, upon their contract of indemnity, for any recovery which might be awarded against him on account of the levy. This liability, arising ex contractu, was enforceable, after the sheriff should have been damnified, by an action prosecuted by him upon the contract or undertaking of indemnity. It cannot well be considered to have been the purpose of the statute to provide for the enforcement indiscriminately, in a single legal action, of both of these obligations incurred by the appellants, — -one resting upon tort, and existing only in favor of the plaintiff, and the other growing out of contract, and existing only in favor of a co-defendant. It is rather to be deemed to have been the purpose of the enactment to provide respecting the remedy for the enforcement of one or the other of the so dissimilar and distinct obligations.
This action, as it was commenced by the plaintiff against the sheriff alone, was the ordinary proceeding by which compensation for a wrong done was sought to be recovered against a party who had committed the wrong. The steps taken under the statute, by which other parties were subsequently impleaded with the defendant, must
A consideration of the prior existing- law and of this statute will lead.to the conclusion that the latter of these alternative propositions expresses the object of the statute.
- First. The plaintiff needed no statutory intervention to enable him to maintain an action for the wrong against any or all whom the law made answerable for such wrong.
- Second. The proceeding for bringing in these parties is not to be taken until after an action has been commenced against the sheriff. There is nothing in the statute suggesting that the action may not be properly commenced and prosecuted against the officer alone, as one might always prosecute one of several joint wrong-doers. The statute has not taken away this remedial right, but, on the contrary, recognizes it as still existing.
. Third. The new parties are brought in only at the instance and upon the application of the defendant, and the plaintiff has nothing •to do concerning it. He cannot invoke the joinder of the parties. They may be brought in, even against his will.
Fourth. The persons who may be joined as parties under the statute are only those against whom the sheriff may assert a right of indemnity. Any stranger or agent of the sheriff, who should take part with him in the wrongful levy, would incur the same liability to the owner of the property as the sheriff himself or his indemnitors; yet such persons may not be brought in as parties under the statute. The language of the act makes it applicable only to “the obligors in the bond, * * * and the plaintiff in such execution, attachment, or other process.” The persons thus referred to will have made
The general rule that neither contribution nor indemnity may be-had by one wrong-doer against another for the consequences of the wrongful act, is subject to this among other exceptions, viz.: When, one is employed or directed by another to do an act in his behalf which is not manifestly wrong, and which the former does not know, or is not presumed to have known, to be wrong, the law implies a> promise of indemnity by the principal for such damages as flow directly from the execution of the agency. The employer impliedly assumes the responsibility. 1 Chitty on Cont. 748; Adamsons v. Jarvis, 4 Bing. 66; Moore v. Appleton, 26 Ala. 633. The principle is applicable to the case of the sheriff who in good faith follows the direction of the plaintiff in a writ of attachment or execution in levying upon property. Gower v. Emery, 18 Me. 79; Nelson v. Cook, 17 Ill. 443; Sanders v. Hamilton, 3 Dana, (Ky.) 550; Humphrys v. Pratt, 2 Dow & Clark, 288; Freeman on Executions, § 275; and see Stoyel v. Cady, 4 Day, (Conn.) 222, 226.
In the cases contemplated by the statute, the sheriff is authorized to release the levy and exonerate himself, unless the plaintiff shall indemnify him by bond with sureties. The plaintiff, by furnishing such bond, whether the bond is executed by himself or not, ratifies the levy already made, and requires the officer to maintain the levy upon the property in dispute. If the intervention of the plaintiff in such case consists only in delivering to the sheriff an indemnity bond executed by himself as principal, with sureties, the express obligation of indemnity thus created would leave no room for a mere legal implication of a promise to indemnify. The express contract would be one of indemnity, and would determine the extent of the obligation assumed. If the plaintiff should furnish to the sheriff an indemnity bond, not executed by himself, (assuming that this would be a compliance with the statute,) it, too, would operate as a ratification of the levy made in his behalf, and would be in effect a request, if not a requirement, on the part of the plaintiff that the sheriff forbeap
Fifth. The execution which issues upon a judgment in favor of the plaintiff in the action must be first satisfied out of the property of the parties thus joined as defendants before the property of the sheriff can be resorted to. This, too, shows that the persons whom the statute contemplates as subject to be made parties, upon motion of the sheriff, are such only as are deemed to be ultimately responsible, as between themselves and the sheriff, for the damages which may be awarded against him in the action; that is, those standing in the relation of indemnitors to him.
Our conclusion is that the purpose of the statute, in providing for bringing in these parties defendant, was not the enforcing in favor of the plaintiff of a liability in tort, but rather to enforce, for the benefit of the sheriff, such right of indemnity as may exist in his favor. By the statutory procedure, this right, otherwise only enforceable by a separate action brought by the sheriff after a recovery had been had against him, is now made available in the same action which determines his own liability. By this means circuity of action is avoided; the judgment against the sheriff concludes also his indem-nitors; those who are responsible over to the sheriff,-and have undertaken to save him harmless, are made to discharge that obligation-as soon as it becomes absolute; and the property of the sheriff, for whose benefit the statute is framed,-is protected, so far as can be consistently with the rights of the plaintiff, from being taken for a liability not ultimately his own. It should not affect the result that the same parties, whose contract liability to ihe- sheriff it is the object of the statute to enforce, might have been held responsible to
It follows from the premises that the liability of the appellants in this action is measured by the terms of the contracts of indemnity, and that the law relating to the responsibility 'of joint wrong-doers, or of those who adopt and ratify the wrongful acts of others .committed in their behalf, does not indicate the rule or measure of damages to be adjudged against the appellants. So far as they are concerned, it is, except as to the form of the proceeding and of the judgment, as though this was an action prosecuted by the sheriff upon the indemnity bonds, after his right to recover upon them had been established. Hence the amount of the recovery against the principals and sureties in the bonds is limited to the penal sums named therein respectively, with interest from the time when their liability became fixed and ascertained; that is, in this case, from the time of the award of damages in this action against the sheriff.
In this connection the, question ■ arises whether there is any other limitation (than the penalties named), of the amount of the recovery against these indemnitors, arising from the facts that several writs were levied upon the same property, and several indemnity bonds executed to the sheriff. Under the circumstances of this case, these facts have not the effect to reduce or limit the recovery against the obligors in the bonds to a sum less than the penalties therein. The precise terms of the bonds do not appear in the record, but we assume that each undertaking of indemnity was as broad in its scope as the levy to which it related. The levy under each writ extended to all of the property, and constituted a conversion of it. The sheriff has been found liable for such conversion, and a recovery awarded against him therefor to an amount exceeding (even after deducting the value of the book-accounts) the sum of the indemnifying bonds shown to have been given. It does not appear that the sheriff has any other available security. The terms of the bonds in question, as we assume, obligate those executing the same to save the sheriff
The cause is remanded that judgment may be so entered.
Crilfillan, C. J., because of illness, took no part in this case:
Dissenting Opinion
dissenting. I dissent from so much of the opinion of the court in this case as holds that the amount of the judgment against the appellants Gotzian & Co. and Wyman & Mullen is limited to the amount of the penal sums of their respective bonds of indemnity to their co-defendant, Getman, the sheriff. I think that they are liable as joint trespassers with the sheriff, and for the same amount. I concede that section 155 was intended for the benefit of the sheriff, and not of the plaintiff. I also concede, what is self-evident, that it is only those who have indemnified the sheriff whom he has a right to have impleaded. But to draw from these considerations the conclusion that, when thus impleaded, their liability to the plaintiff is measured by their contract of indemnity to their co-defendant, seems to me a non sequitur.
As correctly stated in the opinion of the court, these parties, by furnishing the sheriff a bond of indemnity, adopted and ratified the acts of the sheriff and made them their own, and thus became liable to the owner of the property as original trespassers jointly with the sheriff. The plaintiff might have sued all of them jointly, or, as he did in this case, sue only one of them, and, if he failed to get satisfaction out of him, then bring another action against the others, or any of them. At common law, if one of several joint trespassers
That the penal sum in the indemnity bond is not the extent of the liability of “the plaintiff in the writ, ” is evident from the fact that
Such are some of the complications which would arise from the views adopted by my brethren — views which, in my judgment, find no support in either the language or reason of the statute, and which certainly were not suggested upon the argument of the case by either counsel.