128 Va. 122 | Va. | 1920
delivered the opinion of the court.
Stuart P. Johnson brought an action of detinue in the Circuit Court of Dickenson county against William and Nicy Belcher to recover certain logs and lumber which he claimed. In connection with this action he executed the bond provided for by the Code, in the sum of $10,000, with John M. Skeen as his surety, and secured an order directing the sheriff to seize the property described in the summons. The sheriff executed the order of seizure, but there is a controversy as to the property actually seized, and also as to the contents of the return on the process. This controversy is made possible by the loss of the original papers.
Upon the trial of the action, of detinue, the plaintiff took a non-suit. Thereafter William and Nicy Belcher instituted three separate actions on the seizure bond — one for the benefit of the plaintiffs, one for the benefit of a man named Potter, and the third for the benefit of one Marion Ramey. The first action was adjusted and dismissed. The declarations in the other actions were lost, and at the March term, 1917, of the court these declarations were supplied. By agreement the two cases were tried together, resulting in verdicts and judgments, respectively, for Potter and Ramey. The order book of the trial court shows that on March 21, 1917, the defendants pleaded nil debet. Later, in 1919,' the defendant, John M. Skeen, filed a plea of non est factum.
After the rendition of the verdicts above mentioned, the defendants moved the court in arrest of judgment, and to
The petition charges that the trial court erred in three respects—
First: In the instructions given upon'the motion of the plaintiffs;
Second: In refusing to give instructions asked by the defendant;
Third: In refusing to set aside the verdict and grant petitioner a new trial.
The following extracts from the testimony of Skeen and Mullins, given on the trial, will clearly bring out the conflict between these witnesses on the one hand, and Sutherland on the other,' over this vitally important question of the contents of the sheriff’s return. The vitally important inquiry in this connection is not whether a sheriff’s return can be attacked — a question on which there is much citation of authority in the petition and briefs — but what was the return actually made by the sheriff.
A. A. Skeen testified as follows:
Q. State whether or not you recollect the sheriff calling on you to help him make the return; if so, what was done by you?
A. My recollection is that his statement that I made the return for him is correct * * * I think that he stated to me that he only took charge of this lumber, and gave me his reasons for it, and that was all he took in charge, and I so stated in the return, is my recollection of it.
Q. Is that the lumber at the Tower’s siding?
A. Yes, I think he stated the facts in regard to his conduct in regard to the matter, as he did here. I think he stated it to me at that time.
On cross-examination of the witness the following occurred :
Q1. You do not know whether the sheriff afterwards came back and amended the return to show that he took all the property in possession?
A. I didn’t know of it. I know that if he did take it in possession it was contrary to our instructions. * * *
It may be stated at this point that some of the property described in the action of detinue was at Tower’s siding, on the railroad, and another portion of it was at a mill, distant a mile and a half or two miles from the siding.
The testimony of the sheriff who executed the process is in part as follows:
Q. Mr. Mullins, were you the deputy sheriff in August, 1916, of this county?
A. Yes, sir.
Q. Did you execute the process in, the action of detinue of Sheen v. Belcher?
A. Yes.
Q. Upon what did you levy your process? In other words, what part if any of the property involved in the action of detinue did you take in charge?
Mr. Sutherland: We object because he said he executed the process. It is a question of his return, not what he done, what the return shows.
The Court: Ask him what the return shows.
Q. Did you make a return, of the process in that case?
A. Well, I served the notice on that lumber was there and made a correct return of it, on what was at the river.
Mr. Sutherland: We object and move to strike out the answer of the witness.
The Court: What was in the return ?
A. As well as I recollect, it showed that I levied on what ' lumber was there at the mill.
Q. At the mill?
A. At the Tower’s siding.
Mr. Sutherland: Objected to because they are bound by the return.
The Court: You can ask him whether that covered part or all, but that return is what you have to go by.
Q. State whether or not you took in charge any part of that property other than the lumber at Tower siding?
A. No, sir.
Mr. Sutherland: Your Honor please, it is not a question of what he done, but what the return shows.
The Court: There is no contention that he took any lumber that he did not levy on.
Judge Skeen: I want to show what property he took in charge, I want to show what part he took in charge.
Mr. Sutherland: His return is the only evidence of that.
Judge Skeen:. There seems to be a dispute about what the return was; he said he returned what he did, and I want to show what he did as showing what his return was.
By the Court:
Q. You returned what you did?
A. Yes.
Q. Do you know what you did ?
A. Yes.
Q. Go ahead and state?
A. I levied on what lumber there was at Tower’s siding and that was all.
Q. Did you ever go on that trip near to that mill than something like a mile or mile and a half or two miles ?
'.A. Well, I expect it was a mile and a half or two miles from where I was to the mill.
Q. State whether or not you did anything or had anything to do with any property around there other than the lumber at Tower’s siding?
A. No, sir.
Cross-Examination.
By Mr. Sutherland:
Q. What was in your process, what did it direct you to do?
A. I don’t remember.
Q. How do you remember anything else about it?
A. Well, Johnson was with me, and he said that was all he wanted me to levy on * * * .
Q. You made a return that you levied on the property mentioned in the writ?
A. The lumber as well as I remember at the river, Tower’s siding.
Q. Didn’t you make your return that you executed that writ by taking into possession the property mentioned in the within writ?
A. No, sir, I think not.
Q. Did you write your return?
A. No, sir. I had Judge Skeen write it for me * * * .
Q. You never went any further than Tower’s siding?
A. No, sir. I crossed the river and crossed back.
Q. You know what your return shows?
A. Yes. •
Q. How do you remember that?
Q. Did you read it?
Mr. Sutherland: We object to all of this testimony. He does not know what was in it.
The Court: You need not speak of the return, if you do not know what was in the return itself.
Judge Skeen: * * * I believe Stuart P. Johnson you stated was with you at the time you took in charge this lumber at Tower siding?
A. Yes, sir.
Q. State whether or not at that time he directed you not to take in charge anything else other than that lumber?
A. Yes, sir.
Objected to. Objection overruled. Exception by the plaintiff.
The defendants also submitted evidence to show that some of the lumber actually seized was damaged before it was hauled from the mill to Tower’s siding. To this evidence the plaintiffs objected on the ground that it was not proper under the pleadings. This objection was overruled. There was no objection made to Skeen’s testimony, and the objections made in the course of the testimony of the deputy sheriff apparently were made upon the theory that the defendants were bound by the return, and that this testimony was an attack upon that return. As pointed out, supra, the return was lost, and it was primarily necessary to establish that return. The plaintiffs seemed to' think that the testimony of Sutherland irrefutably established the return and completed the record. The following appears in the testimony of the witness Potter:
Judge Skeen: We object to that; there is no evidence of seizure or taking this property into possession.
Mr. Sutherland: I testified to that, that the sheriff’s return showed that. That is the record and is. conclusive.
After Skeen, Mullins and others had testified, counsel for plaintiff’s moved to strike out all the evidence submitted by defendants with reference to the return, “because under the pleadings they were not entitled to it.” This motion was overruled and exception noted. Later when the evidence was concluded, counsel again moved to strike out all the evidence which tended to contradict or vary the officer’s return. This motion was overruled and exception noted.
Of course, if this evidence was proper under the pleadings, it did not vary or contradict the officer’s return, but raised an issue as to what was the actual return. According to the contention of the defense, a contention sought to be established by testimony, the actual return of the sheriff showed that his levy, or seizure, was limited to the lumber at Tower’s siding. In the view of the plaintiffs, the actual return showed, as testified to by the witness Sutherland, that both the lumber at the mill and at the siding was seized.
The issue of fact over the return is an issue on the merits that should be submitted to the determination of a jury, under appropriate pleadings and properly guarded instructions.
Instructions Nos. 1 and 2, given on the motion of the plaintiffs, were to the effect that if the jury believed' from
Instruction No. 4, given on motion of the defendants, and instruction 5-a, which was an instruction asked for by the defendants and modified by the court, are as follows: '
4. “The court instructs the jury that the defendant, John M. Skeen, as surety on the bond signed by him, only became liable for damages resulting to, on account of, or caused by the seizure of the property taken into custody by the sheriff, and unless they believe by a preponderance of the evidence that property other than the lumber at Tower siding and on the'island near thereto was actually taken into custody by levy and seizure, as alleged in plaintiff’s declaration, by the officer, then Adam Potter will be confined to his actual damage sustained by the seizure of said lumber at Tower siding and on the island near thereto.”
5-a. “The court tells the jury that it is incumbent upon-the plaintiff to prove by a preponderance of the evidence that a levy and seizure of the property was made as alleged in his declaration, and that to constitute a levy, the officer making it must have had the property in his power and view, and the plaintiff is not entitled to recover damages on account of any property which the jury may believe from the evidence was not in the power and view of Allen Mullins, who made the. levy, when the levy was made by him.”
Under these instructions the jury were empowered to consider the evidence of Skeen and Mullins, and if they gave credence to their testimony,. and believed that the sheriff did not go beyond Tower siding and the island, and as a matter of fact did not levy on the lumber at the mill, and his return was to this effect, conforming to and showing what he actually did, they were directed to disregard in their estimate of damages all of the property at the mill,
“The court tells the jury that in this case, as a matter of law, the return of the process of seizure or levy by Allen Mullins, deputy sheriff, is conclusive as to what property was seized or levied on in the action of detinue.”
This instruction conveyed but one meaning to the jury, and that was that they should regard the testimony of Skeen and Mullins as attacks upon the return and therefore not to be considered. The witness, Sutherland, had already testified that the sheriff’s return showed" that all of the property directed to be levied on had been seized. In his opinion, as cited supra, “That was the record, and it was conclusive.” The unvarying attitude of counsel for the plaintiffs throughout the trial had been, that all evidence of the defense with reference to the return, and all evidence tending to contradict the officer’s return, “showing what was levied, upon,” was improper and should be stricken out. Formal motions to that effect had been made and overruled. With all of this in mind, how else could the jury interpret instruction three, save as a direction from the court to consider the testimony of Sutherland as - conclusively establishing the return, and therefore fixing beyond controversy the property levied on in the action of detinue, and the consequent liability of the defendants? As a matter of fact, the sheriff’s return was not before the jury. Both parties were seeking to establish their contentions as to that return by secondary evidence. If the jury believed the witness Sutherland, they of necessity rejected the testimony of Skeen and Mullins. On the'other hand, if credence was extended to the latter, they rejected the testimony of Sutherland. A
We are not unmindful of the familiar and well established doctrine of harmless error, a doctrine which is designed to support a verdict, or a judgment, which, in spite of errors actually committed, is, after all, the finding that upon the whole should have been rendered, upon the merits. But this is not a case of that character. The record shows that the defendants have a substantial defense which has not been properly submitted to the jury. This can be done under proper pleadings and appropriate instructions. If, as a matter of fact, the sheriff did not levy on the lumber at the mill and his return was to that effect, and a jury having heard the evidence should so decide, the plaintiffs
In our opinion this case should be reversed, remanded in order that the pleadings may be completed, and the case tried in accordance with the principles herein announced; and it is so ordered.
Reversed.