Dixon v. White Sewing M. Co.

Opinion, Me. Justice Mitchell : The common law requirement of a valid levy that the sheriff shall take actual possession of the goods, has been relaxed in Pemnsylvania to a degree that has been regretted by the judges of this court: Cowden v. Brady, 8 S. & R. 510; Schuylkill County’s App., 30 Pa. 359; but none of the cases have gone further than to hold that a levy in sight or within potential control of the goods will be valid only when followed up by actual possession within a reasonable time: Cowden v. Brady, 8 S. & R. 510; Commonwealth v. Stremback, 3 R. 345; Commonwealth v. Contner, 18 Pa. 445; Schuylkill County’s App., 30 Pa. 358; Welsh v. Bell, 32 Pa. 12. The levy in the present case, therefore, could scarcely be considered a perfected levy, if it had maintained its initial character as a levy on the organs themselves in the possession of the contract vendees. But there are cases which hold that it was a sufficient interference with the possession of the owner to support an action of trespass : Paxton v. Steckel, 2 Pa. 93. “ A levy on the goods of a.stranger to the execution is an exercise of dominion over them sufficient to constitute a trespass, though there be no actual taking of the goods—though they be not touched..... If the debtor have bailed or demised the goods, his interest may be seized and sold, .... but the possession of the bailee may not be disturbed. A levy on the thing itself disturbs the possession, and is a trespass:” Welsh v. Bell, 32 Pa. 16. But it is the person whose possession is disturbed to whom the right of action accrues. “ To maintain trespass it is absolutely necessary that plaintiff must be in actual possession, or have the right of taking possession at the time of the trespass: ” Ward v. Taylor, 1 Pa. 238. Thus, in Srodes v. Caven, 3 W. 258, the action was by the bailee for taking from him property which he had hired, and Welsh v. Bell, already cited, was supported expressly on the ground that the jury found the plaintiff had not parted with the possession. [406] Tested by these principles, the original levy, though upon the organs themselves, gave plaintiff no cause of action. Whatever the plaintiff company’s title might have been, it is clear that it had no right of possession at the time of the levy, or at any time before the sheriff’s sale. The organs had been-sold by Dinkle, and delivered to the purchasers upon contracts for payment in instalments. There is no evidence, nor is it claimed, that any instalments were due and unpaid, or that either Dinkle or the plaintiff had any right of resuming possession in the absence of default in the payments. So far as the evidence shows, even the purchasers could not have claimed anything more than nominal damages: Watmough v. Francis, 7 Pa. 216, and plaintiff had no ground of complaint at all. But Dinkle, either for himself or as agent of plaintiff, had still a title in the organs, to which a reversionary and conditional right of possession attached, and a sale of the goods themselves by the sheriff would be such an interference with this title and consequent right of possession as would support an action. Assuming, therefore, for the present, that plaintiff’s title through Dinkle was valid, we have to consider the right of the sheriff to change his levy, and the steps he took in doing so. The general right of the sheriff to change his levy, to enlarge, or restrict, or abandon it, is unquestionable. Having made a mistake, he is not bound to persevere in it. If he withdraws or abandons the levy, it is absolutely discharged, even though his action was improper and he thereby became liable to the plaintiff in the execution.: Commonwealth v. Contner, 18 Pa. 445. And, having levied on goods themselves, he may upon claim by another either abandon it, or restrict it to the defendant’s interest: Patterson v. Anderson, 40 Pa. 363. This is what the sheriff did in the present case. When he made the levy he does not seem to have been aware of plaintiff’s interest in the organs, and he accordingly levied on them as the property of Dinkle. On being informed of plaintiff’s claim, he changed his levy by reducing it to Dinkle’s interest in the organs. It is true he did not notify the purchasers in possession of this change, but they are not here complaining of omission, and as already seen they are the only ones whose rights were interfered with by the levy itself in either form. In accordance with his action in changing the character of [407] the levy, the sheriff also changed his return. His right to do so is equally beyond question. The effect of so doing is another matter. The sheriff, as the executive officer of the court, is charged with the duty of making return to the mandates of its writs, but what return he shall make is within his own control. The court cannot dictate what it shall be: Vastine v. Fury, 2 S. & R. 426; Maris v. Sehermerhorn, 3 Wh. 13. # It can only require that it shall be in form appropriate to the writ, and as matter of law sufficient. And this control of the sheriff lasts as long as the writ is in his hands. The right to alter his levy as affirmed in Patterson v. Anderson, supra, necessarily carries with it the right to make a corresponding alteration in his return, if it should happen to be previously written. In Schuylkill County’s App., 30 Pa. 358, it is reported that the sheriff “ made return,” and afterwards, but before return-day, made a new levy, sale, and new return. Whether the expression “ made return,” means that the writ was actually returned into the court office is doubtful, but until such actual return the right of the sheriff to alter his indorsement on the writ is beyond question. It is the final act of filing it in court that fixes his official return. In the present case the return was not changed on the back of the writ until long after the return-day, and after the commencement of this action, and was not actually filed in court until the day of trial. This, however, was but an irregularity. In Mentz v. Hamman, 5 Wh. 154, it is said that “ the sheriff is not obliged, unless ruled so to do, to make a return to a writ of fieri facias; ” and while this is meant, probably, as a statement of the practice rather than of the law, it is sufficient to show that the delay does not lessen the sheriff’s control over his return, so long as the writ actually remains in his hands. The effect of delaying the return until post litem motam is to take away the presumption to which it is ordinarily entitled in the sheriff’s favor. The change therefore in the levy and the return being within the sheriff’s privilege, and being made under circumstances which gave the plaintiff no right to complain, we have left only the sale, and this it is quite clear was of Dinkle’s interest only. The testimony of Dinkle on this point is somewhat confused, but tends rather towards a sale of his interest only, and the [408] same may be said of the testimony of the sheriff himself; for, although he says in a general way that the organs were sold, he also says that his return will show precisely what was done, and that the sale was held by the under-sheriff, it not appearing that the sheriff himself was even present at all. But the testimony of Spencer, the deputy-sheriff who made the sale, is conclusive that only the interest of Dinkle was sold. It being thus clear that plaintiff below had no present right of possession which could be disturbed by the levy, and the sale being only of Dinlde’s interest, did not interfere with plaintiff’s title, whatever it was, it follows that, under the evidence, plaintiff had no cause of action, and defendant’s sixth point should have been affirmed. As this is decisive of the whole controversy it is not necessary to consider the other questions raised. Judgment reversed.