McGregor v. Wells, Fargo & Co.

1 Mont. 142 | Mont. | 1869

Symes, J.

This was an appeal from an order made by the court below, annulling and setting aside the return of the sheriff to an execution in the case, and ordering an execution to issue in favor of the assignee of the judgment.

Plaintiff, Clarkson,recovered a judgment for $5,000 against defendants, Wells, Fargo & Co., on the 18th day of July, 1868, and, on the same day, said plaintiff assigned one-half of said judgment to Archibald McGregor, by an assignment in writing, and filed same with the clerk of the court. And on the 14th of December, 1868, an execution was issued on said judgment for balance due thereon — $2,5Í7.03, and interest —and delivered to the sheriff for collection. On the 15th of February, 1869, the sheriff made a return on said execution to the effect that, having an execution in his hands in favor of defendants, Wells, Fargo & Co., and against the plaintiff in said aforementioned execution, on a judgment in the same court for $2,673.38, that he applied the amount due on said first execution as a set-off on the last-mentioned execution, and returned the same satisfied. Afterward the said McGregor moved the court to annul and set aside the return of the sheriff to the execution, and to order an execution to issue in favor of him, for so much of the judgment as had been assigned to him (the balance being paid). The court sustained the motion, to which defendants excepted.

The only question presented is, did \ court below err in sustaining the motion to quash the return of the sheriff to the execution, and 'directing an alias execution to issue in favor of the assignee of the judgment. This depends, first, whether sufficient appeared on the face of the judgment roll, and the execution returned to the court, to justify the court in quashing and annulling the return; and, second, whether the assignment of the judgment, from Clarkson to McGregor, justified the court in directing an execution to issue in favor of the assignee.

The court could not quash or ’ annul the return of the execution, on motion, on evidence aliunde of irregularity, falsehood or illegality in the conduct of the sheriff. This can only be reached by action against the sheriff for a false return, and damages resulting therefrom.

The transcript on appeal contains the judgment in favor of Clarkson against Wells, Fargo & Co., the assignment to McGregor, the execution and return of the sheriff, and the order of court and exception to same. The judgment and execution are regular and formal; and there being no statute in this Territory authorizing the sheriff to set off one execution in Ms hands in favor of another, or to apply one execution in payment of another; and the return on its face showing the sheriff had done this, the court committed no error in annulling and setting aside the return. A court has full power over its own process for the enforcement of its orders and judgments.

The written assignment appears to transfer the one-half interest in the judgment from Clarkson to McGregor. No point is made that it is insufficient for that purpose. Section 16 of our Civil Code provides, that in case of a transfer of interest in an action, it may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted.

This authorized the court to allow or direct an execution to issue in favor of the assignee McGregor, upon motion and proof of the assignment of the judgment; and there was no error in the court sustaining that part of the motion. The counsel for appellants attach to the transcript herein the record of a suit in which judgment was rendered in favor of Wells, Fargo & Co., against plaintiff Clarkson and others; and their bill of exceptions shows that they offered, in defending Ihe motion, to prove by affidavits that the indebtedness, on which their judgment was rendered, was purchased before they had any notice of the assignment from Clarkson to McGregor; and they file a long brief, and cite numerous authorities, to show that the assignment to McGregor was subject to all set-offs and equities existing at the time of, or before notice of, assignment, and that the sheriff had the legal power to set off the executions. It is immaterial in this case, whether or not the facts assumed, or positions taken by appellants, are correct; they could not be inquired into, on the motion to annul the return for errors and irregularities appearing on the face of the papers. The record of the case accompanying the transcript shows that the judgment in the case on which the sheriff set off the execution was not against Clarkson individually, but against him and other persons, so that the court could not have set off the judgments on motion, but it could only be done by suit in equity, showing insolvency of Clarkson, etc. The doctrine that a sheriff, under the common law, without any statute authorizing it, cannot set off executions, is too well settled to need discussion. Many questions were raised and argued which would affect the rights of the parties in a suit in equity, but have no bearing on a motion to annul return of sheriff on face of papers.

The court, in directing an execution to issue, ordered the sheriff to proceed and make the money, levy on property of the defendants, sell the same, and pay the money to assignees. The presumption is that officers will do their duty, and proceed according to law ; and it was erroneous to order particularly that the sheriff should proceed to collect the execution, and the manner in which he should do so, but not such as will reverse the order.

The order of the court below is affirmed.

Exceptions overruled.

This cause was taken by appeal to the supreme court of the United States, and the appeal was dismissed at the December term, 1871. 13 Wall. (U. S.) 188.