12 S.D. 595 | S.D. | 1900
This is an action in equity on the part of the plaintiff, who was an attaching creditor of Lavender & Spannagel, to .restrain the defendants French & Orvis from paying over to one T. O. Bogert. who was a judgment creditor of said firm of Lavender & Spannagel, certain moneys that have come into their hands in settlement for a part of the property levied on by said Bogert as a judgment creditor of said firm, and also to obtain a decree adjudging that a portion of said fund in the hands of said French & Orvis be applied to the plaintiff’s judg
The Jiacts disclosed in the findings of fact may be briefly stated as follows: That in August, 1890, the defendant T. O. Bogert recovered judgment in the circuit court of Bon Homme county against Lavender & Spannagel for the sum of §14,000; that on the 12th of the same month execution was issued on the said judgment, and on the same day the sheriff levied upon the personal property of said Lavender & Spannagel, which was then of the value of §16,000; that while the sheriff, Petrie, defendant herein, was so in possession, and holding said property under said execution, the plaintiff and appellant herein, a corporation, commenced an action in the circuit court of said county to recover the sum of $877.49, and that in said action a warrant of attachment was issued and levied upon all the property taken from said Lavender & Spannagel uhen in the possession of said Petrie under the said execution; that subsequent to the levy of the said execution and said warrant of attachment, Conyne, Stone & Co., commenced an action in claim and delivery against the said Petrie, and took from him a portion of said goods so levied upon under the execution and the warrant of attachment; that at about the same time L. A. Shackman & Co., in a similar action, took from the sheriff a portion of the goods that had been so levied upon by him, and that at about the same time, Tootle, Hosea & Co., in a similar action, also took from the possession of the said sheriff a portion of the property so levied upon by him, and that all the property so taken in said three claim and delivery actions was, in August, 1890, by the plaintiffs in said actions, taken from this state, without any participation on the part of said Bogert
The appellant contends that the conclusions of the court were erroneous in so far as the amount charged against said Bogert was limited to the amount received by him under his agreements with Shackman & Co. and Conyne, Stone & Co., and claims that he should have been charged-with the total value of the goods so taken in the actions of Shackman & Co., and Conyne, Stone & Co., and further contends that the conclusions of the court were erroneous in allowing to Bogert the expenses of the litigation. The appellant further insists that, when the sheriff had levied upon property under the Bogert judgment, and execution sufficient to pay that judgment, his judgment was, in effect, satisfied; and if he thereafter made any arrangements with Shackman & Co. and Conyne, Stone & Co.', by which he released to them a portion of the property without the consent of the appellant who had a yalid lien upon the property next in order. Bogert’s release of the property to Shackman & Co. and Conyne, Stone & Co. should not affect the appellant. It is contended on the part of the sheriff, in support of the conclusions of law of the learned coui’t below, that, inasmuch as a portion of the property levied on under the Bogert execution was taken in claim and delivery by Shack-man & Co. and Conyne, Stone & Co., and taken out of the state, he was authorized to make the best terms possible with them, and that he therefore should only be charged with the amounts received by him in those settlements; and that the money expended by him in the litigation was not only for the benefit of himself, but for the benefit of the appellant, and that he was properly allowed by the court the sums so expended.
The value of the goods taken by Shackman & Co. and by Conyne, Stone & Co. was found by the court at the date the settlement was made, and not at the time the goods were taken from the possession of the sheriff. The appellant contends that it should have been allowed to prove the value of the goods at the time they were so taken, and that their value at that time should have been found by the court, and appellant allowed that value. On the trial the appellant offered to prove
It is further claimed by respondents that Bogert should not be held for the value of the goods taken in the Shackman & Co. case, .for the reason that the court finds that the action has never been dismissed, and is still pending. This contention is untenable for the reason that the settlement was, in effect, a transfer to Shackman & Co. of Bogert’s rights under his execution; in other words. Shackman & Co. would, in equity at least, be entitled to be subrogated in place of Bogert. Such being the case, it would be difficult, we apprehend, for the appellant to prosecute that action with any hope of success. The fact that such action has not been dismissed or otherwise terminated does not, in our opinion, affect the rights of the appellant in this action
The second question is one of more difficulty. It is claimed by appellant that the authorities are uniform in holding that the court should not allow attorneys’ fees under the oircum