McGinnis v. Prieson

Mr. Justice Woodward delivered the opinion of the court, October 1st 1877. In the distribution of the fund produced by the sale of Adolph Prieson’s property, the first question that arose was one of fact. Jonas Zindel, the" appellee, asserted a right to participate in the distribution, by virtue of the lien of three executions issued to constable Keller, in judgments, obtained on the 3d and 13th of June 1876, before a justice of the peace. On behalf of the appellant this right was denied, on the ground that no levy had been actually made. Prieson testified that although the constable was at his store, no intimation of an intention to make a levy was given him, and that he remained in possession until the store was closed by the sheriff. On the other hand, the executions which were issued on the 26th of July 1876, exhibited an endorsement on each of a levy made on the 7th of August on “one soda-fountain and fixtures, seven show-cases and contents, and a lot of whiskey, brandy and wines in bottles and barrels.” On each of the three executions issued on the 15th of August the same entry was copied, and reference was made to the former executions and the original endorse-. [115] merits. In support of his return, the constable swore that he made the levy, gave notice to Prieson of the articles seized, made a memorandum of them in his presence, and from that memorandum endorsed the levy on the executions. The court below accepted the record of the constable’s official action, corroborated as it was by his sworn statement, as decisive of the question in dispute in favor of the appellee. It cannot be said that the decision was based on unsatisfactory grounds. The parol evidence was conflicting, and only due weight was given to the return made by the constable, in the discharge of his legal duty, on the 7th of August, five days before the appellant acquired any adversary right by placing his execution in the sheriff’s hands. “ It is a Avoll-settled rule of law,” it was said by Justice Kennedy, in Fitler v. Patton, 8 W. & S. 455, “ that where any act is required to be done by any one, and especially by an officer, within a limited time, which were he not to perform as required, would render him guilty of a criminal neglect of duty, the law will presume that it was done rightly, and will throw the burthen of proving the contrary on the other side.” It was also objected to the application of the fund to the claim of the appellee, that, as there was no actual seizure of the property, and the defendant in the executions was left in its possession, the levy was not legally made. A reference to rules which precedents have firmly established, sufficiently answers this objection. It was said by Strong, J., in Commonwealth Insurance Company v. Berger, 6 Wright 292, that “ strictly, it is true, a levy is an actual seizure; but in this state it has been held that if the officer, with the goods in view and within his power, assert that he makes a levy upon them, his acts are equivalent to a levy.” This statement of the legal principle is warranted by the cases of Wood v. Vanarsdale, 3 Rawle 401, and Trovillo v. Tilford, 6 Watts 468. To continue the lion of an execution, it is not necessary that the personal property levied on should be taken into actual possession; it is sufficient if it be forthcoming to answer the exigencies of the writ: Dorrance’s Administrators v. The Commonwealth, 1 Harris 160. The mere leaving in the possession of the defendant of goods levied upon, with the permission of the plaintiff, will not divest the lien of the execution, unless there be fraud: Keyser’s Appeal, 1 Harris 409. While there has boon no attempt to prove any fraudulent agreement, practice or contrivance on the part of the appellee, it is insisted that his claim should be postponed, because all the proceedings on the executions indicated an intention not to sell, but to cover up and secure a lien upon the goods made subject to the levy. Two of the appellee’s judgments were recovered on the 3d of June 1876. The third was recovered on the 13th of that month. Executions were issued on the 3d of July, and wore stayed on the 22d. On the 26th of July the second series of executions went out. They were levied on the 7th of August, and were returned with the levy [116] endorsed on each, and with the entry “on want of time,” made by the constable as part of the return, on the 15th of August. The same day the justice issued the third series of executions, and the levy made on the 7th of August was immediately endorsed on the new writs. Meanwhile the appellant’s execution was issued to the sheriff on the 12th of August. All of Prieson’s personal property was levied on and taken into the sheriff’s custody at once, and was sold on the 28th of August. Of the disposition made of the first writs the appellant is not in a position to complain. When his execution passed into the sheriff’s hands, the property was bound by the lien of the constable’s levy, which the terms of the 18th section of the Act of the 20th of March 1810 would have preserved for twenty days from the 7th of August. It is not necessary to inquire what effect upon the appellee’s rights would have been produced by the sheriff’s sale on the 28th of August, if the constable had retained the second series of writs in'his hands until that time. Those writs were returned for reasons that were satisfactory to the magistrate on the 15th of August, and fresh ones were issued in their stead. The consequence was that the appellee stood in the same position on the 28th of August that he would have occupied if the sheriff’s sale had been made within twenty days from the date of the constable’s levy. The 18th section of the Act of 1810, after authorizing a levy, fixing the extent of its lien, and empowering the officer to take a bail-bond, and in default of such bond to sell, made this provision for the contingency of the loss of the lien from lapse of 'time: “ But should the lien be expired, the justice may issue an alias execution, which may be proceeded on as aforesaid.” In all the steps that were taken it is not seen how anything was done by the appellee to involve his claim in hazard. He took no personal action after staying the first executions, and the appellant had not then obtained his judgment. Nor did anything in the proceedings of the justice and constable indicate any other purpose than the collection of the judgments of the appellee by the application, in entire good faith, of ordinary and familiar legal process. The legitimate end of an execution is to have the money'at the return of the writ, or, for good reasons set forth in the return, to hold the property for another writ, and not to favor the debtor by giving him time or a deceptive appearance of ownership : Lantz v. Worthington, 4 Barr 153. Eor all that appears, this “ legitimate end” was kept in view throughout these proceedings. Even if there had been official irregularity or undue delay, the appellee would not have been held responsible. An execution will not be postponed for the officer’s default. His procrastination, even by the sufferance*of the creditor, is not fraudulent per se, and postpones only when the creditor directs him not to proceed: McCoy v. Reed, 5 Watts 300. The lien of these executions was legally acquired and was duly preserved until the seizure of the ^ [117] goods by the sheriff withdrew them from the constable’s control. In the entire absence of affirmative proof of any action on the part of the appellee that»would bar his rights, he was entitled to take the amount of his judgments out of the proceeds of the sheriff’s sale. Decree affirmed, at the costs of the appellant, and the appeal dismissed.