69 Mo. 186 | Mo. | 1878
This is a suit on an indemnifying bond given by defendants to the sheriff of Washington county against all damages and costs which he might sustain in consequence of the seizure and sale of property claimed by plaintiff', Deggendorf, and levied upon in virtue of an execution in the hands of the sheriff in favor of the banking house of Bartholow, Lewis, & Go., and against the Washington Mining & Zinc Company. The property levied upon consisted, among other things, of 150 barrels of oxide of zinc, 98 barrels of which it is alleged were sold under said levy. The suit is prosecuted in the name of the sheriff' for the use of said Deggendorf, who alleges that he was the owner of said zinc at the time it was levied upon and sold, and also that he was damaged by the seizure' and sale of it in the sum of $2,000. The answer of defendants puts in issue the allegations of the petition and avers substantially that the 98 barrels of zinc claimed to have been levied upon by the sheriff were never sold by him, and that the zinc that was sold was not the property of Deggendorf. The cause was tried by the court, a jury having been waived, and resulted in a judgment for plaintiff' in the sum of $1,116.95.
On the trial each party offered evidence tending to prove his theory of the case. During its progress many exceptions were taken, but as only those which relate to the action of the court in giving and refusing instructions, have been brought to our attention in the brief of counsel, we will confine ourselves to a consideration of them. The court refused all the instructions asked both by plaintiff' and defendants, and gave, of its own motion, the following, which were excepted to.
1. The court instructs the court sitting as a jury, that if it find from the evidence that, on the 5th day of August,
2. The court instructs the court sitting as a jury, that if it shall find from the evidence in the cause that the defendants herein recovered judgment in St. Louis county against the Washington Mining & Zinc Company, and caused an execution thereon to issue to the sheriff of Washington county, and that said sheriff, in pursuance of the mandate of said writ, and in the execution thereof, levied the same on 150 barrels of zinc, the property of the plaintiff; and that he notified the sheriff, who was, in the execution of said writ, the agent of defendants, that the property was his, and not that of said company, and that after said notice was given as aforesaid, the sheriff, as the agent of defendants, acting by virtue of their commands in said writ, and by direction of their attorney on the ground at the time, did sell 98 barrels of zinc, as the property specified in the levy, by which authority alone he could sell, and that the attorney of defendants was present at the sale, superintending the same and received and receipted for the money arising thereupon, then, and in such case, if the court shall find that the zinc was plaintiff's property, defendants are estopped to deny that the property sold was part and parcel of that embraced in the levy, and the plaintiff’ may recover therefor in this action.
5. The court declares the law to be, that the sheriff, in making the levy and sale under the execution of Bartholow, Lewis & Co., was the agent both of them and of the Washington Mining & Zinc .Company, the defendants in the execution, and if the court shall find that the sheriff'
6. The court declares the law to be, that if the plaintiff in this action was the agent of the Washington Mining & Zinc Company, in the management and operation of its works, he could not, in such event, without the consent of said company, operate the works of said company and claim the products thereof for his own benefit and behoof; but on the contrary, in such case, any contracts entered into by plaintiff' with third parties, and the issues and profits arising therefrom, less the cost of producing the same, so far as paid by plaintiff, are the property of said company, unless, from the evidence, the court shall find that the agency or fiduciary relation between the plaintiff and said company had terminated before the property levied on was produced.
9. The court declares the law to be, that the law presumes the zinc sold by the sheriff to be a part of that embraced in the levy, and the burden of proof rests on the defendants to show that such was not the case, to the satisfaction of the court sitting as a jury.
"When the issues presented by the pleadings are considered, it would seem that the above instructions are peculiarly applicable to them. All the questions at issue and raised by the pleadings are fully submitted by them, and plaintiff’s right to recover predicated on the establishment by him of the facts, that the sheriff' levied the execution upon 98 barrels of zinc, that at the time of the levy the zinc was his property, and that it was subsequently sold under the levy.
That a levy was made is established by the return of the officer indorsed on the execution, and this is conclusive as to that fact, in the present action, on the defendants, who were plaintiffs in the execution, and who admitted the fact of the levy in the indemnifying bond sued upon. Held in the case of Hallowell v. Page, 24 Mo. 590 : “ To permit the parties to an action to controvert the truth of the rotura of the officer deputed by law to serve the process, would produce great delay and embarrassment in the administration of justice. Hence it is the general rule that as between parties to the process or their privies, the return is usually conclusive, and is not subject to collateral impeachment. This rule, it is said, is necessary to secure the. rights of the parties, and give .validity and effect to the acts of ministerial officers, leaving the persons injured to their redress by an action for false return.”
As between the parties in the suit in which the return is made, and privies and the officer, the return of the offi
Until such return is reformed by a direct proceeding for that purpose, it is conclusive against the officer, where-ever the party against whom he seeks to impeach it derives some interest from or under it. Gwynne on Sheriffs, 573, 575. Plaintiff in this suit derives his right to sue by reason of the levy made and the subsequent sale of the property, and in that respect this case is distinguishable from the ease of Burgert v. Borchert, 59 Mo. 80, where the inter-pleader claimed no right under the return of the officer.
We are, therefore, of opinion that the objections taken to the second and tenth instructions are without foundation, and that no error was committed by the court in re-' fusing the declarations of law asked by defendants numbered one, two and seven, which relate to what is necessary to constitute a valid levy.
Neither was there error in refusing the eighth instruction, because it ignores the question as'to whether the 98 barrels of oxide of zinc sold in August, 1874, by the sheriff, were accepted by him, as well as by Stevenson the agent of defendant, as the zinc levied upon, and the fact that it was sold as such by direction of defendants’ agent and the proceeds of sale received by him. We think it clear from the evidence that 98 barrels of zinc were levied upon by the sheriff in July, 1874; that Deggendorf, the claimant of it, was allowed to retain it upon giving bond to have the property forthcoming when demanded by the officer for sale; that at the sale 98 barrels of zinc were delivered by Deggendorf to the sheriff, which he accepted as and for the zinc levied upon, and which was sold by direction of defendants’ agent, and the proceeds applied in satisfaction of the execution. By thus accepting the zinc as the same that was levied-upon,"selling it under the execution, and paying the proceeds to the agent of defendants directing the sale, we think they are estopped from
Instructions numbered nine, ten and eleven were also properly refused, because an appropriate instruction on the same matter contained in them was given in the sixth declaration by the court of its own motion.
It is insisted that instruction number five is erroneous, because there was no evidence justifying the court in inserting therein the words “ that he was mak- . , . . „ mg zinc at Ins own expense. I he only notification given by plaintiff to the sheriff at the time the levy was made, as appears from his own evidence, was as follows: “ I told the sheriff that the company had no property there; it was all mine.” While we think that the said instruction is open to the objection made to it, we are of the opinion that it was harmless, for the reason that, although the zinc which was sold by the sheriff may have been different zinc from that levied on, yet as plaintiff knew that fact, was present at the sale, and made no objection to the sale thereof as the'property levied on, his right to recover would be unimpaired, provided the sheriff and defendants accepted the zinc as and for the zinc levied upon, and the sheriff, by direction of the defendants, sold it as such; and provided, further, that the zinc which was sold was in fact the property of plaintiff.
He had asserted to the sheriff his claim to the zinc which he levied upon ; of this claim the defendants had been notified by the sheriff, and to protect him from liabil
The sheriff', in his evidence, swears that “ Stevenson was present at the sale acting as attorney. I sold it at his direction. Deggendorf claimed the property.” The questions at issue having been fairly submitted in the instructions, the judgment is affirmed.
Arrirmed.