66 Mo. 653 | Mo. | 1877
— Plaintiff’s petition states that defendant was sheriff of Livingston county when the execution hereinafter described was issued; that in an action at law in the common pleas court of Livingston county, on April 22nd, 1871, wherein Herman Metzner was plaintiff, and one A. N. Smith was defendant, plaintiff recovered a judgment for $1,127.33 and interest at 8 per cent, thereon and costs, and that in aid of said judgment, certain personal property, described in said petition, attached in said suit, and in the possession of defendant as the sheriff of said county, was ordered to be sold and the proceeds thereof applied in special payment of said judgment; and averring that said property was seized and levied upon on the 3rd day of January, 1871, by said sheriff, and was worth $2,000, and was ample to pay said judgment; that after
Defendant, Graham, in his answer admits he was sheriff as stated; that judgment was rendered in the common pleaá court, and the specific personal property set forth by' plaintiff in his petitio'n was ordered to be sold to pay said judgment and costs: “ admits, he as the sheriff, had seized and held the same under and by virtue of a writ of attachment issued out of said court, that an execution issued on said judgment in favor of plaintiff' and against Artemas N. Smith, of date June 3rd, 1871, directed to defendant Graham, as sheriff of Livingston county, and delivered to him the same day,” by ;which he was commanded to sell said attached property as the property of said Smith, and to return said execution and proceeds to the common pleas court on June 17th, 1871, to satisfy said judgment and costs; that June 178Sa, 1871, has come and gone, and he ■has not sold said property as commanded; denies that he has not returned said writ of execution according to law; and denies he has become liable to plaintiff for the amount of said execution or any part of it.' Defendant further alleges that a judgment was rendered in the circuit court of Livingston county, on February 16th, 1871, in favor of John A. Ewing and against said A. N. Smith, foreclosing
Plaintiff for his reply, admits the suit upon the mortgage.and judgment thereon in the circuit court of Livingston county, in favor of Ewing and against Smith: but avers that said suit was instituted on January 4th, 1871, and after the suit was commenced and the levy by attachment made, by defendant as sheriff in the suit wherein Metzner was plaintiff and Smith was defendant; admits an execution was issued on said judgment in favor of Ewing, and delivered to Graham, as sheriff', and that he as sheriff, sold said goods, in a manner and form, and for the
At the May term, 1875, of the Linn county Court of Common Pleas, where the foregoing cause was pending, it came on for hearing, and by agreement of parties was submitted to the court for trial, on the pleadings and their admissions, without the introduction of any testimony by either party. Whereupon, the court was askecl by counsel for plaintiff to declare the law of the case, as follows:
1. It is admitted by the pleadings that plaintiff commenced a suit by attachment against one A. N. Smith, about January 2nd, 1871, in the Common Pleas Court of Livingston county, which suit he prosecuted to a final judgment April 22nd, 1871, for the sum of $1,127.33, with
2. That defendant, as sheriff of Livington county, was not authorized or permitted by law, except at his peril, to decide between two rival claimants for attached property in his possession, and if he did so decide, and decided wrong, and in favor of the wrong party, he is responsible in damages at the suit of the injured party.
3. That if the defendant, as the sheriff of Livingston county, had and held in his possession, attached property of one A. N. Smith, sufficient to pay any part or all of the execution issued on June 3rd, 1871, by the common pleas court, to enforce its judgment rendered on April 22nd, 1871, in favor of plaintiff, and against said A. N. Smith, and that after defendant had levied upon and seized said attached property by virtue of process from said common pleas court, an execution from the circuit court was delivered to him as the sheriff aforesaid in favor of one Ewing, and against the said A. N. Smith, by virtue of which said last recited execution defendant proceeded to and did sell the aforesaid attached property, and applied the proceeds thereof in payment of said last recited execution, then the court must find for plaintiff in such sum as it may believe from the evidence the attached property was reasonably worth, not exceeding the amount of the judgment rendered in his favor in the common pleas court, with interest thereon at six per cent, (ought to be 8 per cent., sefi petition,) from April 22d, 1871.
To these declarations of law defendant objected to the 2d and 3d, and the court gave the 1st and 2d, and refused the 3d; and to its refusal to give the 3d, plaintiff excepted. The defendant then asked four declarations of law, the first three of which the court refused, and gave the fourth, which is as follows:
4. Should the court determine that plaintiff ought to recover, still, because the defendant is not damaged, the
It was held when this cause was here before, (57 Mo. 404,) that the sheriff should not have sold the attached property under the special fi. fa. issued on the judgment of foreclosure, but should have held the property under the attachment, and certified to the circuit court the reason of his failure to sell under that execution. The property being in custody of .the law, the officer clearly had no right to sell it under the process issued from another tribunal of concurrent jurisdiction — the jurisdiction of the Common Pleas Court having first attached. But the undenied allegations of the defendant’s answer, do not show that the irregularity of the sheriff’s action in the premises, has worked the plaintiff any substantial injury. The mortgage being of prior date to the attachment, and placed on record before the levy of the latter, the mortgagee occupied a superior attitude to the attaching creditor. So that, if the sheriff* had, in doubt as to his duty, taken appropriate steps in the nature of a bill of interpleader, there can be no doubt, but that Ewing, the mortgagee, would have proved successful in the contest thus ■ evoked. It cannot be that every mere technical breach of duty, or abstract remissness, unaccompanied by resulting injury, can form the basis for a substantial recovery, not at all pro]Dortionate to the actual damages sustained. Ewing, the mortgagee, having, as the answer shpws, the better right to the mortgaged property, the plaintiff cannot be said, on the admitted facts, to have lost his debt through the negligence of the defendant. (1 W. 8., p. 614, § 64.) It is unnecessary 'to say whether the ruling was correct which allowed the recovery of even nominal damages, since the defendant is
Affirmed.