Geiger v. Henry

Pek Curiam This cause having been reached in its regular order fór final disposition, was referred by the court to its 'Commissioners! for investigation who1 have reported that there is no reversible error in the record, except as to the final judgment entered. [210] The litigation arose under a claim proceeding. A suit of attachment was instituted by defendant in error against one Hicks; and certain personal property was levied on as has. The plaintiff in error, Geiger; interposed a claim to the property by tendering the statutory affidavits, and also a bond with his co-plaintiffs in error as sureties. A trial of the claim resulted in a verdict and judgment for defendant in error. The verdict of the jury was a simple finding in favor of the p laintiff in the attachment proceedings and the following judgment was entered therein by the court, vie: “Wherefore it is considered by the court that the right of property in and to the said property levied on by the sheriff herein is in the defendant W. R. Hick®, and not in the said L. D. Geiger, and that the same was and is subject to said levy under the writ of attachment in said cause. And it Is further ordered that upon judgment being rendered in said cause against the said defendant that execution shall issue thereon against the said L. D. Geiger, claimant, and against John B. Mills; Jules Salomon, W. F. Coachman and A. Drysdale, to the extent of $250, if so much is recovered, or for such smaller sum as ma" be recovered against said defendant.” The claim bond accepted by the sheriff recited that the sheriff had fixed a valuation of $250 on the property seized under the at tachment writ and claimed by Geiger. It does not appear that the claimant befire the trial denied in writing the correctness of any valuation of the property seized, or that the question of its valuation was in any way submitted to the jury on- the trial. That part of the judgment entered deciding the right of property to be in the attachment debtor Hicks, and subject to the levy of the attachment writ was proper on the verdict rendered, but the other portion of the judg [211] ment was unauthorized and in violation of the statute. It provides (section 1200 Beviised Statutes) that “upon the verdict of the jury the court shall enter judgment deciding' the right of property, and if the verdict is for plaintiff, awarding a recovery by the plaintiff from the defendant and his sureties of the value (as fixed by the officer, or as fixed by the jury if fixed by it) of such parts of the property as the jury may have found subjec! to execution, and awarding separately such damages as the jury may have awarded, and all costs attending the presentation and trial of the claim's.” The judgment purports to award execution against the1 claimant and his sureties for an indefinite sum) to be thereafter ascertained by a judgment to be entered in a different proceeding by attachment against Hicks and' to be based thereon, and in this respect was unauthorized by the statute. The court could have entered judgment on the verdict against the claimant and his sureties for the valuation of the property fixed by the sheriff, there being no question of valuation before the jury, but there is no authority for the portion of the judgment awarding execution in the way indicated. .After.a careful examination of the assignments of error, other than in reference to the judgment, no reversible error is found, and the judgment will be reversed at the cost of defendant in ¡error, with directions for the Circuit Court to enter a proper judgment on the verdict, and for such further proceedings as may be conformable †0> law.