Mahon v. Kennedy

87 Wis. 50 | Wis. | 1894

Newman, J.

Doubtless it was the sheriff’s duty to levy Fraser’s attachment at once, on its receipt by him for service. Then Fraser’s attachment would become the first lien upon the attached property, and he would be entitled to have the proceeds of the sale applied upon his claim. Attachments are to be levied as soon as possible after their receipt for service. Like executions, they are to be levied in the order of their receipt by the sheriff for service. Drake, Attachm. § 191; Knox v. Webster, 18 Wis. 406.

In order to effect a levy which shall be valid against subsequently attaching creditors, the officer must seize the property of the debtor. R. S. sec. 2736; Drake, Attachm. § 256. He must actually reduce it to possession, so far as, under the circumstances, it can be done. lie may put it into the possession of a receiptor, but he must not leave it in the possession of the defendant. It is not competent to deliver it to the plaintiff in the attachment, nor to make him receiptor. Drake, Attachm. § 290. In attempting to levy Fraser’s attachment the officer did not seize the-property, nor go near it, nor see it, nor in any way assume possession or control of it. He made a verbal arrangement by which Fraser was to be considered receiptor for it; and Fraser sent word to the defendants’ hired man, Glenn, in whose custody at the defendants’ logging camp the property then was, to take care of it for him. It does not appear that Glenn consented to take charge of it for Fraser. At all events, there was no apparent change of possession. While this may have been a good levy as against the attachment debtors, on the ground of their consent to it, it was invalid as against subsequently attaching creditors. It was, at most, a mere nominal levy of the attachment. Drake, Attachm. §§ 255, 256, 290, 292a, 292b; Bell v. Shafer, 58 Wis. 223.

Eraser’s, attachment, then, was no obstacle to the levy of the plaintiff’s attachment. It was no lien upon the property ; for neither the issue of an attachment nor its delivery to an officer for service confers upon the plaintiff any right in or lien upon the defendant’s property. Only a levy can do that, and the effect of a levy is to be dated from the time of the seizure. Drake, Attachm. §§ 221, 255, 263. Nor would it be an obstacle, even if Glenn informed the officer of what had been done under Eraser’s attachment. Id. § 292b.

The plaintiff’s attachment seems to have been duly levied. The officer actually seized the property and removed it. That was a sufficient levy. It was the first levy upon the property. The first levy obtains the first right of satisfaction. A subsequent levy under a senior attachment could not supersede that right. Drake, Attachm. § 255; Knox v. Webster, 18 Wis. 406.

The sheriff and his deputies are not regarded as, for all purposes, one officer; and the sheriff is not, in all circumstances, chargeable with notice of what his deputies do about the service of process. Russell v. Lawton, 14 Wis. 202; Knox v. Webster, 18 Wis. 406. In this case the sheriff did know what his deputies had done in regard to the levy of these attachments before he applied the proceeds of the sale of the attached property on Fraser’s claim. (Twelfth finding of fact.)

There was a small error in the computation of interest, which makes the judgment too large by $7.85. It does not appear that this error was called to the notice of the trial court. The question cannot be raised for the first time in this court. Morris v. Peck, 73 Wis. 482.

By the Court.— The judgment of the circuit court is affirmed.