88 Mo. 430 | Mo. | 1885
-This is a suit in the name of the state at' the relation of Robertson against defendant, Hope,' and the co-defendants as his sureties ón his official bond'
The plaintiff’s evidence tends to show that on July 12, Samuel Schneider, who was a wholesale liquor merchant in Kansas City, turned over to plaintiff in payment of a debt of about equal amount due from him to plaintiff, and in further consideration that Robertson should assume a debt of twelve hundred dollars due from Schneider.to one Rice, the entire stock of goods, fixtures, etc., in his store in Kansas City, Missouri, and invoiced at the sum of seventeen thousand dollars; that under such sale and transfer, relator took immediate and exclusive possession of said stock of goods in said storeroom, locked said storeroom and kept the key thereof; that his debt was actual and tona fide, and that he took the goods in payment thereof, in good faith and for that and for no other purpose, and that on July 14, said sheriff, claiming to act under certain writs of attachment issued of that date by the circuit court of Jackson county, in favor of certain other creditors and against said Schneider, forcibly broke open the storeroom and seized and carried away said stock of goods as the property of .said Schneider. Defendants’ evidence tended to show that at the date of sale and transfer of said property to the relator, Schneider was insolvent,
There are no questions arising upon the record in this case as to the action of the court in the admission or exclusion of evidence. The grounds urged here for reversal grow out of the court’s action in giving instructions, indeed the material question involves the propriety of a single instruction, the seventh given for defendant and which is as follows :
“The jury are instructed that the law presumes that the defendant, Hope, as sheriff of Jackson county did his duty in levying the writs of attachment on the goods in controversy, which presumption the jury must take into consideration in making a verdict; and before the jury can find for the plaintiff, the relator Robertson must overcome that presumption by a preponderance of the testimony.”
Where the controversy is between the officer and parties to the writ, the presumption mentioned usually exists in favor of the officer. In actions against officers, for false returns, ■ this presumption has often been invoked. But a writ which authorizes and commands
In this case, as the evidence shows and as is ■conceded, Robertson, the relator, was at the date of the levy in the actual and exclusive possession •of the stock of goods and the law presumed him to be the owner thereof. The writs which defendant Hope, had in his hands as sheriff ran against one, Samuel Schneider, and said writs authorized and commanded him to seize the property of said Schneider. Robertson was an entire stranger to said writs and a seizure of goods in his possesion and to which he presumptively had title, without any precept against him ■or his property, was prima facie wrongful.
Prima facie the officer was a trespasser. Linbloom v. Ramsey, 75 Ill. 246 ; Lammon v. Feusier, 111 U. S. 17 ; Day v. Gallup, 2 Wall. 97; Buck v. Colbath, 3 Wall.
• We, therefore, reverse the judgment upon this ground, and remand the cause for further proceedings in conformity hereto.