Remdall v. Swackhamer, 8 Or. 502

8 Or. 502 | Or. | 1880

By the Court,

Watson, J.:

This is an action against the sheriff of Union county, for the recovery of certain personal property seized by him on execution, and damages for the taking.

After the sheriff had taken possession of the property as the property of James Bemdell, defendant in said execution, the respondent served a notice, in writing, upon him, claiming the property. Thereupon the sheriff summoned a jury to try the validity of the claim, gave notice to plaintiff in the execution, and a trial was had in substantial conformity to the provisions of sections 283 and 284 of the code, resulting in a verdict adverse to the claimant. Notwithstanding the verdict of the jury, and while the property was yet in the sheriff’s hands, the respondent brought this action.

The defendant pleaded the verdict as a defense to the action, which plea and defense was stricken out of the answer by the court, on the motion of respondent, as irrelevant, and this order of the court below is assigned as error on this appeal.

The particular question presented to this court for determination is, whether the verdict of. a sheriff’s jury against the claimant, under sections 283 and 284 of the Civil Code, can be pleaded as a full defense by the sheriff to an action brought by the claimant against him for the recovery of the property, and damages for taking it.

Section 284 declares that the “verdict of such jury, being rendered in writing and signed by the foreman, shall be a full indemnity to the sheriff proceeding in accordance therewith, but shall not preclude the claimant from maintaining an action at law for the recovery of the possession of such property, or for damages for taking the same.” The question is upon the meaning and validity of this section. If the legislature had simply mooted that “the verdict of the jury, rendered in writing and signed by the foreman, should be a full indemnity to the sheriff proceeding in accordance therewith,” there would be no difficulty in ascertaining the meaning.

If the verdict should be for the claimant, the sheriff would be justified in delivering the property to him, unless the plaintiff in the execution tendered the written undertaking of indemnity provided for in section 286, and thereby made it his duty to proceed and sell the property notwithstanding the verdict, or if it should be against claimant, the sheriff would be fully protected by it in retaining possession of the property, and disposing of it according to the commands of the execution.

In either case he would be proceeding in accordance with the verdict, and no action would lie against him either to recover possession of the property or for damages. Such would be the obvious and natural import of the words employed. But by the succeeding clauses of this section, it is declared that ‘ ‘ the claimant shall not be precluded by the verdict from maintaining his action at law for the recovery of the property, or for damages for taking the same.”

Do these clauses mean that the claimant may, notwithstanding the verdict against him, maintain his action against the sheriff for the possession of the property, or for damages for taking it? If this is the true meaning, it is obvious that the “full indemnity” provided for the sheriff in the preceding part of the section, is greatly impaired; in fact, for all practical purposes, destroyed. There would be no ‘ ‘ full indemnity,” practically no indemnity at all. It would be in the power of the claimant, in every case, after a verdict adverse to bim, to bring his action against the sheriff while the property still remained in his hands, to recover possession of it, with damages for the taking and detention, and if he proceeded in accordance with the verdict to retain possession of the property, and dispose of it in obedience to the commands of the execution, it would be at his peril.

By the common law a sheriff might, upon his own motion, summon a jury to inquire into the right to property, and the verdict, while it did not determine the right of property between the litigating parties, protected the sheriff against an action for a false return by the plaintiff in the execution, when the return was nulla bona in accordance with the verdict of the jury. (Fisher v. Gordon, 8 Mo. 386; Bayley v. Bolis, 8 Johns. 185; Crocker on Sheriffs, sec. 446.)

This is the original of our statute, and the statutes of other states upon the subject, where the consequences and effects of such verdicts have been extended and rendered more important. In some of the states, under their peculiar statutes, the proceeding has become judicial, and the verdict and judgment thereon is a final and conclusive determination of the right of property. (Act of Penn, of April 10, 1848; 1 Purden’s Digest (10 ed.), 643; 68 Penn. St. 60.)

In Missouri, Ohio, and Illinois, the proceeding has been held not judicial, and yet the courts of those states have uniformly held that the sheriff was entitled to whatever protection their peculiar statutes declared he should have under this proceeding, and that those statutes did not conflict with the provisions of their state constitutions, in every respect similar to our own. (Fisher v. Gordon, 8 Mo. 386; Schroeder v. Clark, 18 Id. 184; Patty v. Mansfield, 8 Ohio 370; 16 Ohio Stat. 420; Rowe v. Bowen, 28 Ill. 116.)

We think these, and numerous other authorities, not necessary to cite, settle the question as to the validity of these proceedings, and fully entitled the sheriff to whatever measure of protection the particular statute under examination intended he should have. But the question still remains as to the extent of the protection intended to be afforded the sheriff by our own statute.

In Patty v. Mansfield, 8 Ohio, 370, above cited, on a statute which provided that “ such judgment for the claimant as aforesaid, shall be a justification to the officer in returning nulla bona to the writ of execution, by virtue of which the levy had been made as to such part of the goods and chattels as were found to belong to such claimant,” the court held that the decision being adverse to the claimant, protected the sheriff against an action of replevin by the claimant for the property, and a plea thereof a full defense to such action. In rendering this decision Judge Hitchcock says: “As the statute does not specifically declare that in such case the officer shall be protected, it seems to be supposed by the plaintiff in the present case that he may be subsequently subjected to an action at common law for the property, or to respond in damages for its value. We think, however, that such is not a proper construction of this statute. We suppose that in the enactment of this law the legislature had two objects in view; one was to enable an individual whose property had, through mistake, been levied upon, to recover the possession in a summary manner. The other, and the principal, was to furnish protection to an officer of the law, who should make a mistake in the discharge of ,his duty. This latter object would not be effected, if, after a trial of the right of property, and a decision against the claimant, the officer could still be subjected to an action at his suit.”

Aconstruction almost as broad was adopted by the supreme court of Missouri in the case of Schroeder v. Clark, 18 Mo. 184, cited above. The statute provided that “ if the jury find the goods and chattels to be the property of the defendant in the execution, the verdict, as against the claimant, shall justify the officer in selling such goods and chattels.” The court held upon this statute that a verdict adverse to claimant was a bar to an action by him against the officer for the possession of such property.

Adapting the liberal principles of construction observed by the highest courts in many of the other states, in determining the meaning and intention of similar statutes upon the same subject, we feel bound to so construe our own as to give the sheriff acting in good faith, and in the line of official duty, the fullest indemnity which a due regard for established rules of construction will allow, keeping in view the object of the statute, and in order to give every part of it a reasonable effect, to reconcile all its provisions, and escape any repugnancy which would render any part void, or the whole ineffectual for the fulfillment of its evident purpose and design, we hold that the effect of the verdict of the sheriff’s jury under consideration was to fully indemnify and protect the sheriff against any action by the claimant, for acts done by him under and by virtue of the execution; that the clauses in said section 284, succeeding the one giving “ full indemnity,” and formally declaring the right of the claimant to still maintain his action to recover possession of the property, or for damages for taking the same, notwithstanding the verdict, should not be construed as referring to the sheriff, or in any manner affecting his “full indemnity,” but as referring to other parties than the sheriff, who are neither bound by the result in this proceeding, nor derive any immunity therefrom. (Dwarris on Stats., 660, 706; Sedgwick on Stat. and Com. Law, 57, 60, 62, 63.)

If this view of the law is correct, it was error in the circuit court to strike out the portion of appellant’s answer setting up the respondent’s claim and adverse verdict of the sheriff’s jury thereon as a defense to the action, and for this reason the order and judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with this decision.