83 Mo. 323 | Mo. | 1884
This is an action against the defendant, Koontz, as constable, on his official bond for wrongfully releasing property seized under a writ of attachment in favor of the relator, J. H. O’Bryan. The facts, briefly, are, that one Charles Kaufman owed said O’ Bryan the sum of $80. Said Kaufman lived in the neighborhood of Tipton in Moniteau county. He seems to have sold out everything there save a horse and mule and two or three wagons, which horse and mule and a wagon, perhaps, he took with him to the town of Boonvillein Cooper county. On his arrival there O’Bryan sued him on said debt, by attachment. The writ was placed in the hands of Koontz as constable of the township for service. O’Bryan pointed •out said property, with other machinery, etc., connected with a butcher shop in Boonville, and directed the constable to levy on it; which the constable did. He removed the horse, mule and wagon to a livery stable in town. The property so seized was claimed by the sons and wife of Kaufman, respectively, who made claim thereto in writing and delivered the same to Koontz, who demanded of O’Bryan an indemnifying bond. On failure of O’Bryan to give such bond, the constable released the property to the claimants, and made return of the writ .accordingly.
O’Bryan, after obtaining judgment in the justice’s
The answer of defendants, after admitting the attachment jiroceedings, the seizure of the property under the-writ as aforesaid, and the obtaining judgment by O’Bryan for Ms debt, denied that the property so seized belonged to said Charles Kaufman, or that it was lawfully subject to such seizure for the debt of said Charles. It further alleged that after plaintiff so obtained his judgment he took no further steps to enforce the same by having execution issued thereon against Kaufman, and levying-on said property as he might have done. And it pleads specially that he was directed by jDlaintiff, on receipt of the writ of attachment, to levy the same on the property in question, which property was then in the possession of other parties, and being in doubt as to Ms right to-seize the same, he demanded of the plaintiff an indemnifying bond; that plaintiff agreed to give the same, and thereupon he proceeded with the writ and seized the said property; that said claimants to said property thereupon gave Mm written notice of their claim and demanded restitution of their property, of which fact he informed plaintiff, and demanded that he protect defendant by a bond of indemnity. On plaintiff’s failure and refusal to-so do he released said property to said claimants, who heavers were the rightful owners.
To the portion of said answer setting up the demand, for indemnity and plaintiff’s refusal to give it, the plaintiff demurred, which the court sustained. The jury found for the plaintiff the amount of his debt, with interest and costs, for which the court entered judgment. Defendant, after an ineffectual motion for new trial, has brought the case here on writ of error.
I. The first and controlling question for determination, on this record, is the right of the constable, under the writ of attachment, on notice of claim of a third party to the property about to be seized or actually seized, to demand of the plaintiff in the action a bond of'
The first mode recognized by the common law practice for his protection, in such conjuncture, was to demand indemnity of the plaintiff for the seizure and sale, and of the claimant for releasing it. The constable in this case made demand of the plaintiff in the writ only. In the event both parties refused to give the indemnify-. ing bond, the officer might make application to the court out of which the writ issued. It was discretionary with the court whether it would interfere; but the courts nearly always acted when satisfied of the bonajides of the officer’s doubts, that they were based on reasonable grounds, and that he was not in collusion with the defendant in the writ. Unless the plaintiff would then
The other mode was for the officer, under a writ of proprietate probanda, to impanel a jury to inquire into the prima facie title to the property; and if the jury found in favor of the claimant the officer might release to him the property, and make return of nulla bona, unless the plaintiff gave him the indemnity. This finding of the jury would be a justification of the officer for making a return of nulla bona. Farr v. Newman, 4 T. R. 633 ; 4 T. R. 648; Wells v. Pickman, 7 T. R. 177; see Gwynne on Sheriffs, 260. But it was afterwards denied by the English courts that such finding by the inquisition would constitute matter of defence by the officer when sued for a false return. Latkaw v. Eamer, 2 EL Blackstone 437; Glossop v. Pole, 3 Maule & Sel. 176. The common law practice of summoning a jury to pass on the probable title to the property seized was early adopted by the courts of New York, and has since been pursued there. Bayley v. Bates, 8 John. 188; VanCleef v. Fleet, 15 John. 150; Curtis et al. v. Patterson, 8 Cow. 65. In this last case the court say: “A plaintiff is never bound to tender an indemnity until a jury have passed on the question of property. A sheriff acts at his peril in making a return of nulla bona under any other circumstances. ’ ’
By later statutes in England (1 and 2 William 4 Ch. 58, sec. 6) the remedy by interpleader is provided by which the officer may call the parties into court to have them litigate the right of property between themselves. It is remarkable that so important a matter in practice has been neglected by our legislature. In many of the states the right of the officer, under a writ of attachment in case of assertion of ownership of property in a third person, to demand of the plaintiff indemnity, where he is in
It would be a most unsafe rule to establish, to leave an attaching creditor so much at the caprice and timidity of a ministerial officer, to recognize his right not to act at all when he was in doubt. It would be a power in his hands for the unnecessary oppression of a poor litigant, whose rights might be unduly lost because of the exaction. It would open too wide the door for collusion with defaulting, dishonest debtors. And while it is true that the good faith and reasonableness of the officer’s apprehension might be open to inquiry before a jury when sued for a false return, the advantages would be too much on the side of the officer in such inquiry to make it available to the plaintiff. His motives and fears are matters so much within his keeping that they would not be very accessible to assault. And in a struggle between the creditors and the officer, the latter very likely being .aided in the contention by the debtor and the claimant, they would occupy quite unequal ground.
Between the two modes, that which required the officer, when in doubt after the refusal of the plaintiff to .give the indemnifying bond, to apply to the court out of which the writ issued for direction and protection, is, in my opinion, far less liable to abuse than the other. This ■too is strongly approved by Freeman on Executions, sec. •275, and by the following adjudications: Forniquet v. Tegarden, 24 Miss. 96; Jessop v. Brotan, 2 Gill & J. 404; Spangler v. Com., 16 Serg. & R. 68; Nagle v. Strohn, 4 Watts 124, 125; Com. v. Vandyke, 57 Pa. St. 38, 39.
The case nearest approaching this question, found in our Supreme Court reports, is that of State ex rel. v. Langdon, 57 Mo. 355. It is true that in that case it does not appear that the constable informed the plaintiff in the writ of the claim set up to the property, or that he demanded indemnity, as in this case. But the language employed by Wagner, J., who delivered the opinion of the court, clearly evinces that in his judgment the officer, after making the seizure, released at his peril, for the reason that the property was then in the custody of the law, and that the claimant should resort to the interplea as provided by the statute in attachment proceedings.. So Hough, J., in State ex rel. v. Fitzpatrick, 64 Mo. 189,. says: “In all cases of seizure of personal property, under-attachment, the officer is compelled to determine, at his-peril, whether the property seized is that of the defendant in the writ. Our statute provides no indemnity for the sheriff in such cases.”
II. The defendants complain of the following instructions given by the court on behalf of the plaintiff : “Although you may believe that Charles Kaufman did give the mule, mentioned in the petition, to his son, Fritz Kaufman, yet, if such gift was made after the debt of the said Charles Kaufman to O’Bryan was contracted, it was void as to O’Bryan, and said mule, at the time of said levy, was subject to attachment or levy for O’Bryan’s-debt against Charles Kaufman.”
“Although Charles Kaufman may have promised to' give the mule, .described in plaintiff’s petition, to his son, Fritz Kaufman, yet such gift could not be consummated without an actual delivery of possession, and if you believe that such possession was not given until after the debt from Charles Kaufman to O’Bryan was contracted, you are instructed that said mule was subject toO’Bryan’s debt.”
The objection urged against these instructions is, that they declared, as matter of law, that the gift by Charles Kaufman to his child or son, Fritz, was fraudulent as to the debt of O’Bryan. The evidence touching this mule was, that said Charles had it in his possession before starting to Boonville, and took the same to Boon-ville, after the creation of the debt to O’Bryan. He-claimed to have given the mule to his son sometime before, and that he delivered it to him on reaching Boon-ville, or about that time. If there had been any real controversy on the trial as to Charles’ solvency, and his-ability to give the mule to his son, in justice to his creditors, this instruction would be bad. But where there
The evidence in this case shows clearly enough that •Charles Kaufman had no other visible property. He had sold out in Moniteau county, and if he had the proceeds ■of that sale they were not visible or tangible. The defendant, Koontz, in his return on the writ of attachment, read in evidence, certified that the property in • question did not belong to said Charles, and that he “could find no property belonging to said Charles Kaufman in my county whereon to levy.” Instead of there being any show or pretense of any tangible property belonging to the said Charles, the whole evidence and • effort of defendants was to show that everything tangible or visible belonged to his sons or his wife. Furthermore, the defendants asked and the court gave an instruction that virtually told the jury, that the appurtenances, etc., .seized about the building were fixtures, and as such not subject to execution as personalty; and defendants’ evidence was to show that of whatever character of property it was it did not belong to Charles Kaufman. Defendants now ask this court to reverse for error on account of an instruction predicated of a fact which they sought throughout the trial to establish. The solvency required by the law, essential to protect a voluntary gift “consists not only in the present ability of the debtor to pay his debts, but in such a condition of his means that payment can be enforced by process of law.” Eddy n. Baldwin, 32 Mo. 360. It was not error, - under such a state of the evidence and the matter really in dispute, to give such instructions. Noble v. Blount, 77 Mo. 240; Terry v. Railroad, 77 Mo. 256.
Under the evidence and the law the judgment is for the right party and should be affirmed.