State Ex Rel. Nolte v. Reynolds

GRAVES, J. Certiorari to the St. Louis Court of Appeals. . The action out of which the present proceeding grows is the case of State ex rel. v. Louis Nolte and United States Fidelity & Guaranty Company, in the St. Louis Circuit Court. Nolte was the sheriff of the city, and the other defendant the surety upon his official bond. The case has had a checkered career, ■which is fairly outlined by the petitioners’ petition in this court in the instant case, thus: “The suit was upon the official bond of said Louis Nolte as Sheriff of the City of St. Louis, Missouri, for damages in the sum of $2,183.57, said amount being the amount for which the said Missouri Poultry & G-ame Company has secured a judgment against one Joseph Filler. It was alleged that the said Louis Nolte, under the execution issued upon said judgment, had levied upon certain shares of stock” and had failed, neglected and refused to sell the shares of stock so levied upon. Upon a trial of said cause, the circuit court directed a judgment for the full amount of the execution, said-court being of the opinion that under Section 2240, Revised Statutes 1909, the sheriff was liable, irrespective of his good faith and irrespective of the actual damages suffered by the execution plaintiff. “Upon an appeal being taken to the St. Louis Court of Appeals, that court affirmed the judgment, all judges concurring; but upon a motion for a rehearing, Judge Reynolds withdrew his concurrence and certified the case to this court, because, in his opinion, the opinion and decision of the court was in direct conflict with the ruling of this court in the case of Metzner v. Graham, [258] 66 Mo. 653. The said opinion of the St. Lonis Court of Appeals will be found in 187 S. W. 896. Said cause was thereupon heard in Division Two of this court where two opinions were written (one being upon motion for rehearing), and then being certified to Court in Banc; when there heard, the divisional opinions were adopted as the opinion of Court in Banc. The opinions of this court will be found in 203 S. W. 956. “By the judgment of Court in Banc, the judgment of the Court of Appeals and of the circuit court were reversed and ^ the cause remanded to the Circuit Court of the City of St. Louis. Upon a rehearing of said cause before Honorable Franklin Ferris, Judge of the Circuit Court, sitting without a jury, said court found that the sheriff had at all times acted in good faith, upon the advice of counsel, provided for him by law, with no interest other than to perform his full duty as sheriff. The court also found that the stock which ho had released from levy had no substantial value. The circuit court entered a judgment against the defendant for one dollar and for costs. From this judgment the plaintiff therein took an appeal to the St. Louis Court of Appeals, where on January 6, 1920; in accordance with an opinion by Judge Allen, filed on that day, the judgment of the circuit court was reversed and the cause remanded with directions to enter judgment against defendants in said cause for the full amount of the execution.” ■ The opinion which we are called upon to review in this proceeding by certiorari, thus states the facts: “This is an action upon the official bond of the defendant No.lte, former Sheriff of the City of St. Louis. The relator, the Missouri Poultry & Game Company, having previously obtained a judgment against one Joseph Filler,' in the sum of $2,161.37, sued out an execution thereon and caused a levy to be made by the defendant sheriff upon certain shares of stock of a corporation, the Joplin Mercantile Company, as the propérty of said Filler. The sheriff duly' advertised this corporate stock for sale under the execution, hut prior to the date of sale Filler’s wife filed a third-party [259] claim thereto. This claim did not state the value of the property levied upon. The sheriff thereupon demanded of relator an indemnifying bond in the sum of $49,000, being, it is said, double the par value of the corporate stock mentioned; and upon relator’s refusal to give such bond, the defendant declined to proceed with the sale. Relator thereupon instituted this action against the sheriff and the surety upon his official bond, namely, the United States Fidelity & Guaranty Company, seeking to recover the entire amount of the judgment debt under the provisions of Section 2240, Revised Statutes 1909. “The third-party claim did not comply with the ‘Sheriff’s and Marshal’s Act’ (R. Sf 1899, p. 2550 et seq.), upon which plaintiff relied as being in force in the City of St. Louis, in that the claim, for one thing, did not state the value of this corporate stock. Plaintiff’s action, therefore, proceeded upon the theory that the third-party claim was not a valid one under the law and afforded no protection to the defendant sheriff in refusing to proceed with the sale. “This is not the first appearance of the case in this court. Upon the first trial thereof in the circuit court, before the court without a jury, the court gave a declaration of law to the effect that under the pleadings and evidence plaintiff was entitled to recovery and entered judgment for plaintiff for the penalty-of the bond, to-wit, $50,000,'to be satisfied upon the payment to relator of the sum of $2,565.35, the amount of relator’s judgment against Joseph Filler, with interest and costs. From that judgment the defendants appealed to this court, where, by a majority of the court, the judgment was ordered to be affirmed. [See State ex. rel. v. Nolte, 187 S. W. 896.] Upon the dissent of one member of the court, however, the cause was certified to the Supreme Court, where it was disposed of by an opinion, or rather two opinions, of Commissioner Rot (State ex rel. v. Nolte et al., 203 S. W. 956). An order was entered by the Supreme Court reversing the judgment' and remanding the cause. It has since been tried in-the [260] circuit court, before the court without a jury, a jury having been waived. Upon this last trial, the trial court found the issues in favor of plaintiff, but found that plaintiff was entitled to nominal damages only. Judgment was therefore entered for plaintiff for the penalty of the bond, to be satisfied upon the payment of damages assessed at the sum of one dollar. From this judgment the plaintiff prosecutes the appeal now before us. “Reference to the opinion of this court on the former appeal will disclose' that there were two vital questions raised and considered in the case. One of these was whether the old Sheriff’s and Marshal’s Act was still in force in the City of St. Louis, or, as contended by the defendant, had been repealed and superseded by the general law. Upon that question we held that the Sheriff’s and Marshal’s Act remained in full force and effect as a special law applicable to the City of St. Louis. With that question decided in plaintiff’s favor, it followed that the third-party claim, by reason of which the defendant sheriff refused to proceed with the sale of the corporate stock mentioned, afforded no protection to the sheriff in so doing, for the reason that the claim, as said, did not comply with this special law. The next question, then, was one pertaining to the amount which plaintiff was entitled to recover, namely, whether plaintiff was entitled to recover merely the damages suffered by the wrongful act of the sheriff, or entitled to recover the full amount of the judgment debt under Section 2240, Revised Statutes 1909. As to this question we held, under that statute and decisions of the Supreme Court thereupon, that the defendant sheriff is liable for the full amount of the execution debt. “Upon certification to the Supreme Court an opinion was first written in the cause by Roy, Commissioner (see State ex rel. v. Nolte, 203 S. W. 956), holding that the provisions of the special law, Sheriff’s and Marshall’s Act, relating to third-party claims to personal property levied upon, had been superseded by what is now Section 2204, Revised Statutes 1909; and that [261] since the third-party claim here involved complies with that section it is valid. On motion for rehearing, a more extensive opinion was written by the Commissioner, wherein it is said, in substance, that the special law, the Sheriff’s and Marshal’s Act, was superseded by the general law, in so far as the latter applies to “the acts of ‘sheriffs, coroners and marshals’ under writs of execution. ’ ’ “The claim of Mrs. Filler set up that a part of the corporate stock in question had been pledged to her in payment of a debt of Filler, and that the debt had matured. And in discussing this question it is held in the opinion of the commissioner that the equity of redemption in corporate stock is not leviable. This matter need not be further noticed here. “The commissioner’s opinion does not in terms pass upon the question as to the damages recoverable in such case; though reference is therein made to the ■case of State ex rel. v. Case, 77 Mo. 247, wherein it is held that for a false return of an execution a sheriff is liable to the full amount of the execution debt. “Following the opinions of the commissioner, as unofficially reported in 203 S. W. 960, appears the following, indicating the respective positions of the members of the Supreme Court upon the two questions, viz: “ ‘PER CURIAM: — The foregoing opinion and the opinion on motion for rehearing filed herewith of Roy, C., are adopted as the opinion of Court in Banc. Williams, Woodson and Blair, JJ., concur; Paris, J., concurs in result and in opinion of Grmes, O. J.; Walker and Bond, JJ., dissent; Graves, G. J., concurs in separate opinion.