153 N.W. 894 | S.D. | 1915
Lead Opinion
Plaintiff brought an action in justice’s court for the alleged conversion of certain personal property, consisting of household goods. The defendant for answer alleges that he was sheriff of Butte count)?; that a warrant of attachment was duly issued out of a justice’s court of Butte county, in an action wherein Smiley -Gay ITardware Company was plaintiff and one T. A. Wright was defendant, and that, under and by virtue of 'said warrant of attachment, he levied upon, and took into his possession, and from, the possession of the defendant T. A. Wright, the property described in the complaint; that the property so seized and levied upon was the property of said Wright,. Defendant also alleges on information and belief that plaintiff claims to be owner of said property by virtue of a pretended purchase from T. A. Wiright; that said purchase, if made, was fraudulent and void, under section 2369 of the Civil Code. The action was tried on April 18, 1914, and resulted in a judgment for defendant. Plaintiff thereupon prepared a statement of the case on appeal, under the provisions of section 100 .of the Justice’s Code, alleging insufficiency of the evidence as the grounds upon which he would rely upon the appeal. The circuit court affirmed the judgment of the justice’s court, and plaintiff brings the action to this court for review, upon the -statement of the case as settled in the justice’s court. The practice in such cases is settled by the decisions of. this -court in Halvorsen v. Myren, 23 S. D. 263, 121 N. W. 782, and Mann v. Hvammen, 32 S. D. 596, 144 N. W. 130.
The judge of the circuit court filed his decision in writing, in which he discussed certain propositions of law raised by appellant. Several points involved in this discussion are attempted' to be assigned as error. The only assignment reviewable on this appeal is that contained in the statement of the case in the justice’s court -as ground of error to be relied upon on appeal. The assignment is that the court erred in dismissing plaintiff’s action
The evidence conclusively shows that the property -had belonged to, and at the time of the levy was in the actual possession of, Wright, the defendant in that action. The sheriff levied upon and took the property into his possession on the 30th day of March, 1914. Plaintiff testified that he purchased the goods from Wright on the 28th day of Maixh, 1914; that he and 'Wright went to the house and made a list of the goods, and that they agreed at that time that the goods were to be plaintiff’s property from the time of the signing of the list; that Wright was indebted to him on a note for $44 and a balance of $20 for rent due April 1st, making $64 in' all; that plaintiff owned the house in which Wright was living; that it was agreed that Wright might continue to use the furniture purchased until the 1st day of April, and on that day should vacate the premises and leave the furniture in the house; that he had no knowledge the goods had been levied upon until informed by Wright; that he did not notify the sheriff that he claimed the goods before this action was commenced. The action in which the attachment was issued was dismissed by plaintiff on April 4th, for some reason not appearing in the record, and a new action immediately begun against Wright, in which another attachment was issued, and a notice of levy served on Wright.
“Every transfer of personal property * * * is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fradulent and therefore void, against those who are his creditors while he remains in possession. * * *”
Section’ 2371, C. C., declares that in all cases arising under section 991, or under the provisions of this title, “except as otherwise provided' in section 2369, the question of fraudulent intent is one of fact and not law.”
It Is conceded that there was no actual change of possession of the property at the time of the alleged sale, and it is plain, therefore, that the attempted sale was absolutely void, as against the attaching creditors of Wright, and that the plaintiff acquired no right, title, or interest in the property which would entitle him tc maintain an action of conversion -because of the levy of the attachment. Conrad v. Smith, 2 N. D. 408, 51 N. W. 720; Shauer v. Alterton, 151 U. S. 607, 14 Sup. Ct. 442, 38 L. Ed. 286; Howard v. Dwight, 8 S. D. 398, 66 N. W. 935.
For these reasons- plaintiff could not maintain his action on-either theory, and the judgment of the trial court must be affirmed.
Concurrence Opinion
I concur in the result reached by Judge SMITH in the foregoing opinion, but prefer to place my concurrence upon the following grounds: Any sale of goods to Scott, prior to the seizure of the goods by defendant, was void as against the attaching creditor. Therefore the possession of defendant was rightful, because any notice of such void sale would be a nullity and would not render such seizure a tort against plaintiff. If, after such seizure by defendant, a valid sale to plaintiff was made (a fact much in doubt), plaintiff could not then recover of the defendant, who was holding the goods as the goods of plaintiff’s vendor, until plaintiff had advised defendant of his ownership of such goods and demanded possession thereof. This is especially true because of the fact that the second action against Wright was commenced, and the notice of levy therein given, ber fore the first action was dismissed. There was therefore no- time wherein defendant was not, as between himself and' Wright, rightfully in possession of the goods. Certainly defendant could not be held to have wrongfully converted these goods because they had become the property of some third person, until he was notified of such change of ownership.