Orr & Lindsley Shoe Co. v. Frankenthal

Gill, C. J. The first assignment of error is as follows: “The trial court erred in refusing to give the jury the following instruction, requested by the plaintiffs: “The court instructs you that, although you may believe from the evidence that the goods purchased by plaintiffs were not so marked or designated that the marshal could have distinguished them.by inspection’ or examination, yet if you believe that the marshal had notice of the sale to plaintiffs of the goods sued for, and could have found out which were plaintiff’s goods after notice then it was the duty of the marshal to have separated plaintiff’s goods from the remainder of the stock, and not levied on them". And if you find from the evidence that he had such notice, and — 372 — refused to separate plaintiffs’ goods, but levied on them, your verdict should be for the plaintiffs.’” Practically this same instruction was passed upon and held good by the said court of appeals, and unless, in substance or effect, the instruction be given in the other instructions of the court, the refusal to give this instruction must be held as error. The court instructed the jury in its sixth instruction as follows: ‘ 'If you find from the evidence that the property in controversy in this cause was in fact the property of the plaintiffs, and if you further find that at the time of the levy of the writ of attachment herein the defendants in this case had a knowledge or notice of the fact that the property in controversy belonged to the plaintiffs, and could, by the exercise of ordinary diligence, have ascertained the particular property and separated it from the other property of W. Scott Cook in the house, and refused to do so, then you should find for the plaintiffs.” And the court, in its third instruction, said to the jury: “Although you may believe from the evidence that the goods purchased bjr plaintiffs were not so marked or designated that the marshal could have distinguished them by inspection or examination yet if you believe that the marshal had notice of the sale to plaintiffs of the goods sued for prior to or at the time of the levy, and could have found out which were plaintiffs' goods after such notice, then it- was the duty of the marshal to have separated plaintiffs’ goods from the remainder of the stock, and not levied upon them; and if you find from the evidence that he had such notice, and refused to separate plaintiffs' goods, but levied upon them, your verdict should be for plaintiffs.” We think these two instructions fully covered all the points mentioned as error in appellants’ first assignment; and, while the court could have well given the instruction in the form asked for by appellants, where it covered by other instructions the points therein it was not bound to use the words presented, to it by the appellants. The second assignment of error is as follows: “That the — 373 — trial court erred in refusing to give the jury the following instruction, requested by plaintiffs: ‘The court further instructs you that, although you may believe from the eviáence. that the marshal, or his deputy whe executed the writ, did not have notice of the sale by said Cook to the plaintiffs before or at the time of said levy, yet if you find from the evidence that he afterwards received notice of such sale, that then it was his duty to have separated the goods belonging to the plaintiffs from the other stock, if it could have been done, and released the levy on them. And if you believe that he had such notice, and refused to separate the goods, and release the levy on plaintiffs’ part of same, you should find for the plaintiffs.”’ Appellants insist that the rule is that if the marshal, whether before or after levy, receives notice that property levied upon by attachment belongs to another individual it then becomes his duty to release the levy as to that property; and cites a number of cases to establish this contention. The general rule seems to be, as laid down in Drake, Attachm. § 196, that: “If an officer attaches personalty not the property of the defendant, he is, ‘of course, a trespasser on the rights of the owner, who may maintain either trover trespass, or replevin against him. Such an attachment is a tortious act, which is itself a conversion; and, if trover be brought, no demand on the officer need be proved. And it is such an official misconduct as his sureties in his official bond are liable for. If he acts by direction of the plaintiff, or of the attorney in the suit, the plaintiff is regarded as equally guilty, and equally liable for the trespass. * * * And against • either officer or plaintiff, where both engage in the act, suit may be brought at once, without any demand or notice, and without the owner being under any obligation to take any steps in the suit in which the seizure is made,” And in section 197 the same authority says: “The necessity for the officer’s making due inquiry concerning the property he attaches is so highly regarded that he will be treated as a trespasser for seizing property not belonging — 374 — to the defendant, even though the owner give him no special notice that the property is his, and make no demand for it.' But the same authority draws the distinction where the property is so intermixed with the property of the defendant that it may not be distinguished. In the second paragraph of the section 199 Mr. Drake says: “When an officer proceeds to execute an attachment, he is authorized to seize any personalty found in the defendant's possession, if he have no reason to suppose it to be the property of another. If it happen that the goods of a stranger are intermixed with those of the defendant, even without the owners knowledge, the owner can maintain no action against the officer for taking them until he have notified the officer, and demanded and identified his goods, and the officer shall have delayed or refused to deliver them. In such case the officer cannot be treated as a trespasser for taking the goods; but, if he sell the whole, after notice of the owner's claim, it will be a conversion, for which trover may be maintained.” And in another paragraph of said section the following statement of the law is made: “If an officer be notified, or have reason to believe, that goods of a stranger are intermingled with those of a defendant, it is his duty to make proper inquiry, with a view to avoid seizing property not the defendant's. He may require the claimant to point out his property; and if, being able to do so, he refuse, the officer may seize the whole, without liability to be proceeded against for a tort.” The question propsed now by appellant seems'not to have been specially pointed out to the court in the preceding trial of the case; nor does it seem to have been directed to the attention of the United States court of appeals. In its decision upon the case the question turned upon whether, at the time the levy was made, the officer then had notice of the sale of the goods to plaintiffs; and that was a question to be determined by the jury under the evidence. But the court does not pass upon the question of the liability of the marshal where he is notified subsequent to the levy of an attachment that a third — 375 — party is the owner of the goods attached, or a part thereof. There seems to be no contention on the part of the defendants, and the evidence of the plaintiffs tends to establish the fact, that the marshall,-after making the levy, was advised of plaintiffs’ claim of the ownership of part or the whole of the property attached, and that at the time of the attachment the goods so claimed were in possession of the plaintiff’s agent.' We have examined the cases cited by appellant in support of his contention, and are convinced, in view of the evidence on behalf of plaintiff in the trial of this case, that it was the duty of the court to give the foregoing second instruction asked for by appellant ,or an instruction covering thé appellants’ contention; and the refusal of court to give such instruction is error. Upon this point the evidence of the defendant tended to show that the agent of the plaintiffs claimed the entire stock of goods; not only the goods mentioned in the bill of sale in evidence, but all the goods in the store. And the jury might believe one or the other of these contradictory claims. If the plaintiff’s agent were claiming the whole stock of goods, and as such agent, on the part of plaintiffs, he had a bill of sale of only part of said stock, this would be such a fraud upon the officer that there could be no liability whatever in his seizure under his attachment writ of the whole of the stock of goods. And if this contention was maintained after the service of the writ, and were all of the goods in the possession of the officer, it would still be a fraud upon such officer, and there would be no liability. But if the plaintiffs, having a valid bill of sale of a part of the goods seized upon under the writ, notified the officer of such bill of sale, and of the plaintiff’s ownership of certain of the goods so seized, there is no doubt that the officer, upon such notificatoin as to such goods, would be a trespasser, and liable to the plaintiffs for the value thereof; and the jury ought to have been properly instructed as to these points. Buck vs Colbath, 70 U. S. 334, 18 L. Ed. — 376 — 257; 1 Wat. Tresp. §. 474; Murfree, Sher. § 270a, and cases cited in footnote; Shinn, Attachm. § 387; Drake, Attachm. (6th Ed.) §§ 196-198, inclusive; Harris vs Tenney (Tex. Sup.) 20 S. W. 82, 34 Am. St. Rep. 796. Inasmuch as all of the instructions of the court excepted to by the plaintiffs, and mentioned in the other specifications of error, are based upon the proposition that the officer would be only liable to plaintiffs in case of the notification prior to the levy of attachment, and we have discussed such question fully in passing upon the second assignment of error, it is unnecessary to take the remaining assignments of error up seriatim, and the case is remanded for further proper proceedings in the court below. Reversed and Remanded.