State ex rel. Schreiber v. Dickman, 124 Mo. App. 653

124 Mo. App. 653 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts.) — 1. Defendants offered an instruction in the nature of a demurrer to the evidence. The refusal to grant this instruction is assigned as error. It is the duty of the sheriff to notify the execution debtor of his statutory exemption rights before he mates a levy to satisfy the execution (R. S. 1899, sec. 3163; Linck v. Troll, 84 Mo. App. 19; Stinson v. Call, 163 Mo. 323, 63 S. W. 729), and if he fails to give the notice and the debtor is damaged thereby, the sheriff is liable on his bond. [The State to use v. Carroll, 9 Mo. App. 275; State ex rel. v. O’Neill, 78 Mo. App. 25; State to use v. Barada et al., 57 Mo. 562; State ex rel. Lewis v. Barnett, 96 Mo. 133, 8 S. W. 767.] Plaintiff’s evidence tends to show the sheriff failed to notify him the execution had been issued or apprise him of his statutory exemption rights, although his place of residence in the city of St. Louis was known and his place of business was across the street from the courthouse, and his property had been sold under the execution and a deed made to the purchaser and placed of record before he knew or was informed of any of the proceedings. Plaintiff’s evidence also tends to show the levy was on seventy-five hundred dollars worth of real estate to satisfy a judgment of one hundred and eighty - nine dollars .and eighty-one cents, a levy so grossly excessive as to be oppressive. Plaintiff’s evidence also shows his homestead was levied upon and sold without his knowledge or consent. This evidence tends to establish not one but several breaches of the bond sued upon and was sufficient to entitle the plaintiff to have his case submitted to the jury.

2. Defendants contend that plaintiff’s remedy was to move the court to set aside the levy and sale. Plaintiff might have availed himself of this remedy, if he had been apprised of the proceedings at the term of court at which the sale was made and before the purchaser at the sale received his deed and had it recorded (Stinson v. Call, supra; Mechanics’ Bank v. Pitt et al., 44 Mo. 364), but after the deed had been executed and recorded, we think a motion to set aside the levy and sale would have been too late and only a proceeding in equity would have been available for the purpose. [Force v. Van Patton, 149 Mo. 1. c. 450, 50 S. W. 906, and cases cited.] Besides, plaintiff was not driven to this remedy to entitle him to sue for the breaches of the sheriff’s bond alleged in the petition. If in a suit by A against B, A should allege in his petition that when his back was turned, he (B) unlawfully, wrongfully, and-maliciously assaulted him (A) by striking him on the back of the head with a club, producing an injury resulting in damages, could B plead as an excuse for the assault or in mitigation of the damages, that A had time and opportunity to have avoided the blow and should have done so by turning his head at the opportune moment to see tire impending blow and then have jumped forward out of reach of the club before the blow was dealt? Such a defense would be as reasonable as the contention here made, that plaintiff should have moved to set aside the levy and sale.

3. Defendants asked the following instruction, which the court refused:

“The court instructs the jury that in no event can the plaintiff recover for the amount of money, if any, paid by him on account of the judgment, interest and costs adjudged against him in the suit in which his property was levied upon and sold.”

Defendants undertook to show the five hundred dollars plaintiff paid Graber was to satisfy the judgment, interests and costs, and Graber’s attorney’s fees in procuring the judgment. Defendants’ evidence tends to show that Graber accepted the five hundred dollars, for the reason that sum was sufficient to pay the judgment, costs and all the expense he had been put to in the whole matter. But there is no evidence whatever that these matters were discussed between plaintiff! and Graber and agreed upon by them as a basis of the settlement, or that the judgment was in fact satisfied by Graber, nor is there any evidence tending to show that plaintiff had in mind the settlement of the judgment when he offered to pay Graber five hundred dollars for a reconveyance of his property. There is, therefore, no substantial evidence upon which to base the refused instruction.

4. It is insisted that plaintiff could recover nothing on account of the sale of his homestead, for the reason the sale as to the homestead was absolutely void. The fact that the sale was void did not appear on the face of Graber’s deed nor from any of the proceedings leading up to its execution, therefore, the deed created a cloud upon the title which plaintiff had a right to remove at the cost of the sheriff, who created it (Harrington v. Utterback et al., 57 Mo. 519; Henman v. Westheimer, 110 Mo. App. 1. c. 195, 85 S. W. 101), viz., what would be a reasonable expenditure in a suit to set aside the sheriff’s deed.

5. It is contended by defendants that they are not liable in damages, for the reason it is not shown in the evidence that the sheriff acted maliciously in making the levy and sale — a novel doctrine to apply to the tortious taking and conversion of plaintiff’s property. The general rule, in such cases, for the measurement of the damages, is the value of the property wrongfully appropriated. [Curtis v. Ward, 20 Conn. 204.] There are exceptions to the rule, as where the property has been returned to the owner and received by him, the return of the property goes in mitigation of the damages. In this case the property was returned or recovered by plaintiff in consideration of the payment of five hundred dollars, in addition to which he was put to other expense in procuring the reconveyance. The jury, however, awarded Mm only the cask paid for tbe reconveyance; be was clearly entitled to this mncb, tbongb we do not approve tbe instructions on tbe measure of damages.

6. A further contention is made that tbe damages should have been offset by tbe amount credited on tbe execution as realized from the sale over and above tbe costs. This point was not made in tbe court below and cannot be raised on tbe appeal for tbe first time, nor do we think this offset is available to defendants in this, action; their liability is that of a trespasser and the judgment creditor’s rights (who is not a party to this suit) cannot be interposed for tbe purpose of reducing or mitigating plaintiff’s damages. [Isaacs v. McLean, 106 Mich. 79.]

Tbe judgment is affirmed.

All concur.