Woolner & Lowenstein v. Spalding ex rel. Heard

65 Miss. 204 | Miss. | 1887

Cooper, C. J.,

delivered the opinion of the Court.

The points principally pressed in argument by appellants are r

1. That where goods of a third person are seized under an attachment against another, the owner must interpose his claim thereto in the attachment suit, and can neither resort to an independent action of replevin, nor sue the sheriff as a trespasser, nor sue upon an indemnifying bond taken by him.

2. That if he may resort to any other remedy than the claimant’s issue, he must in any event await the termination of the attachment suit before he may sue.

3. That where an indemnifying bond is given to an officer levying an attachment, and the goods seized are by him thereafter sold as perishable property, the price realized at such sale is conclusive of their value as against the owner Suing on the bond of indemnity. Neither position is maintainable.

The first and second propositions arise from enlarging the language and purpose of Section 2633 of the Code which declares, “ The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment, when a remedy is given to claim the property by making claim to it by some mode provided by law; but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin.”

The sole purpose of this section was to prevent the possession of the officer from being disturbed by the institution of independent actions, and to draw into the suit in which the writ was issued all controversies the determination of which rest upon the right to the possession of the property seized. An owner of the property is not precluded of any other remedy than that specifically forbidden by the statute, and that is prohibited only so long as the property is in custody of the officer. The owner may, if he elects so to do, postpone action until after a sale is made, and then resort to his action of replevin against the purchaser.

Armistead v. Bernard, 62 Miss., 180.

The bond of indemnity operates to transfer from the sheriff to the obligors responsibility for the trespass of the officer. It is a substitute for his liability and may be proceeded on as soon as the injury is inflicted and a consequent cause of action has arisen.

Leroux v. Hudson, 109 U. S. R., 475; Shuff v. Morgan, 9 Martin, 592.

It is true the owner may at his election interpose a claim to the property under the statute; but he is under no obligation so to do. He has no concern with the action in which his property has been seized, and is under no coercion either to intervene in it or to await its result.

Swain v. Alcorn, 50 Miss., 323; Shattuck v. Miller, 50 Miss., 386.

Nor is it true that the price realized at the sale by the officer is conclusive against the owner. As to him all the proceedings in the attachment are res inter alios acta. His right is to be recompensed for the injury he has suffered, and that is tó be arrived at by the real value of his property converted, and not by what it has brought at a sale to which he does not assent.

Other errors assigned are disposed of by the recent decision of Goodall, Fite & James v. Stewart, ante.

The testimony of the witness Crump was properly excluded. The question propounded was not whether the goods seized were worth the estimate placed on them by the other witnesses, but whether a stock of goods from which sales had been made from time to time in the usual course of business would be as valuable as one fresh from the wholesale markets. The levy in this case was not made upon all the goods in stock, but upon particular articles. There was no evidence to show that the goods levied on consisted of odds and ends of the stock, nor that there were mis-mated shoes and boots as the question implied. The question was based on a hypothetical condition of things not shown to exist, and was therefore incompetent.

The judgment is affirmed.