53 N.Y.S. 656 | N.Y. App. Div. | 1898
The issue made by the pleadings was whether the plaintiffs were the owners, or entitled to the possession of the property levied upon, 'or whether the conveyance by which they claimed to hold' it was one made in fraud of creditors, and in truth and fact it was still the property of Scott & Clark, the defendants in- the execution.
If the latter was the fact, then such property is liable to seizure and sale upon execution to satisfy judgment creditors of Scott & Clark, unless such creditors have in some way precluded themselves from resorting to such'property, which for the purpose of' this, case we will assume they may do.
Whether he was a wrongdoer or not depended upon whether the property he had seized and sold belonged to the defendants in the execution, or to the plaintiffs. The one he was authorized to seize and sell, the other he was not. Upon that question of ownership he took the risk and acted at his peril, if he made a mistake as to who was in fact the owner.
But he did not take the risk of any undisclosed agreement between the plaintiffs and the execution creditor, by which such creditor was estopped from testing the question of ownership, or from resorting to such property to satisfy his execution ; and it seems to me that it was error to admit evidence of any such agreement, and that the charge of the trial court in relation thereto was likewise erroneous.
It was, in effect, holding him responsible for the wrongful act of another, undisclosed to him, in an action predicated upon his own personal wrongdoing.
Such error arises apparently from considering the defendant as standing in the place of the execution creditor, and as his privy or agent, and bound by his acts. Sheriffs and the parties at whose instance process is placed in their hands, are not, in the absence of any other, so to speak, incriminating facts, responsible for each others’ acts.
It has been repeatedly held that a plaintiff in an execution is not liable in trespass for a wrongful levy by the sheriff, even when his attorney has given specific'directions for such levy. (Averill v. Williams, 4 Den. 295; Clark v. Woodruff, 83 N. Y. 518; Welsh v. Cochran, 63 id. 181.)
A sheriff in executing a process directed to him is not the agent or servant of the party, but is the officer of the court, whose precepts he is under the highest obligation to obey, without question
“ As a general rule the officer is bound only to. see -that the process which he is called upon to execute, is in due and' regular form, and issues from a court having jurisdiction of the subject. In .such ease he is justified in obeying his precept, and it is highly necessary to the. due, prompt and energetic execution of the commands of the law that he should be so.” (Wilmarth v. Burt, 7 Metc. 257; Conner v. Long, 104 U. S. 228.)
And there cannot be that prompt, energetic obedience to its commands if the officer is bound to look beyond and behind the process to ascertain if there are any equities that forbid its. issuing, or execution,- when issued,, or in default of making such inquiries to act at his peril.
The' rule that process regular -on its face affords protection to the officer executing it, has been upheld even where such officer had. knowledge of facts rendering the process void. (People v. Warren, 5 Hill, 440; Webber v. Gay, 24 Wend 485 ; Thomas v. Clapp, 20 Barb. 165 ; Bullymore v. Cooper, 46 N. Y. 236; Woolsey v. Morris, 96 id. 311.)
The case of People v. Warren (supra) was where inspectors of election had issued a, warrant for the arrest .of the defendant for. interrupting the proceedings at the election; -the defendant, resisted the officer and justified his resistance Upon the ground .that he had not heard or been in. the presence of. the. inspectors of election at any time, and- that the officer knew it.
The trial court excluded evidence, of such facts, and upon appeal -the court said: “The knowledge of the officer that the inspectors .had no jurisdiction is not-important; he must'be governed and is protected by the process, and cannot be affected. by anything, which he has heard or learned out of it.”
In the case of' Webber v. Gay (supra), speaking of the protection to the officer afforded by the process issued by a justice of the peace,-the
In Chegaray v. Jenkins (5 N. Y. 316) it was held that a warrant in due form issued to a constable by the receiver of taxes of the city of New York directing the collection of a tax, protected the officer executing it, whether the tax was lawfully assessed or not, the court,, amongst other things, saying: “It was no part of the duty of the defendant, a subordinate officer, to overrule or to dispute the authority of his superiors, unless upon grounds apparent upon the face of their mandate. The law does not give him the means of ascertaining extrinsic facts for this purpose ; nor does it attribute to him the capacity for reviewing the assessment of such facts if they coiild be ascertained.”
The perils of the officer would be much increased, his efficiency impaired, and the prompt and energetic service of process impeded, if not prevented, if in case of a controverted agreement, or a disputed equity, as- in this case, the officer should be compelled to decide between the parties as to who is right before executing the process, and be held to answer in damages as for a wrong, if it should finally be determined that he had decided wrong.
But in this case we need not go to the-extent of holding that the process protects the officer, even although he knows extrinsic facts which render it improper to issue or execute it. There is no pre-: tense here that the defendant had any notice of the agreement relied upon by the plaintiffs. It is the process only, and not the process coupled with a knowledge of extrinsic facts, that we have to deal with here.
As he must obey the process if regularly issued, the process is his protection, so long as he acts pursuant to its commands.
Process, regular on its face, issued by a court or officer having
It has been held that an execution regular, in form but void in-fact, which did not, upon its face, convey to the sheriff knowledge •of the- facts that rendered it void, was a protection to him in making .a levy upon property. (Hill v. Haynes, 54 N. Y. 153.)
• Not only is a process, issued by a court óf competent jurisdiction, ,a protection to the sheriff, but it is his duty -to act under it..
• When there is no defect of jurisdiction, neither irregularity nor error, in issuing an execution, will justify a sheriff in refusing or neglecting to- execute it. (French v. Willet, 4 Bosw. 649.)
As to the necessity of acting under process of the court, see, also, Conner v. Long and Wilmarth v. Burt (supra).
It has been held that a sheriff, when sued for an escape or as bail, cannot object that the order of arrest was improperly or irregularly granted, or that there was error or irregularity in the. judgment •or execution. ■'
The order of arrest justifies the sheriff in making the arrest, and, (unless set aside,, justifies the execution. (Bensel v. Lynch, 44 N. Y. 162.)
The officer executing the 'process is. protected, although the party •causing-it to be issued may not be.
A judgment may be- void as to the parties and valid to protect ministerial officers, wher.e the court issuing it had jurisdiction of the .subject matter, and nothing appears' on the face of the process, to .apprise the officer that the court had not. also jurisdiction- of the pern .son. (Welles v. Thornton, 45 Barb. 390.)
. “ Where the court issuing the-process has general 'jurisdiction, and; ■the process is regular on its face, the officer is not, though the party may be, affected by: an irregularity in the proceedings. Where á - judgment is Vacated for an irregularity,, the party is liable for the acts done under it, but the officer has a protection by reason of his regular writ,” ' (Savacool v. Boughton, 5 Wend. 170.)
The case last cited is. the leading case in this State upon, the non-liability of a sheriff for executing a process regular upon, its face and issued by a. court of competent jurisdiction, and his non-liability-was asserted in that case upon the. ground that it was unjust to-hold him liable as a trespasser for doing what it was his duty tó do, with
If the sheriff will be protected in the execution of process void in fact, or for any reason invalid, because of want of knowledge, how much more should he be protected in the service of process valid in fact, and where the only objection to its execution is an'agreement between the plaintiff . in the execution and another creditor of the-defendant in the execution, of which agreement he is not notified, and has no knowledge.
There would be no safety for the officer serving process if he-were to be held bound by undisclosed agreements or equities between parties, or by the irregular manner in which judgments were-obtained.
Under the evidence in this case in relation to the agreement by which judgment was obtained, and the charge of the court in relation thereto, the jury might have found a verdict against the defendant without considering the question as to whether the bill of sale-under which the plaintiffs claimed title, in fact gave them any right to the possession of the goods levied upon by the defendant; or they might have found such bill of sale fraudulent and void, and that it conferred no title to the plaintiffs, and still have found a verdict against the defendant.'
Without considering the other questions in the case, but for the-errors in the reception of evidence, and in the charge herein discussed,, the judgment and order appealed from should be reversed.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide-the event.
