Derrick v. Cole

Hughes, J., i. No levy on property in custody °f (after stating the facts.) The first question in this case is, can a sheriff, by virtue of a writ of attachment which came to his hands before another writ of attachment in the hands of a constable came to the hands of the constable, levy upon and take from the possession of the constable, without his consent, property seized and taken possession of by the constable, under the writ received by him as such constable, after, the time when the writ held by the sheriff came to the sheriff’s hands? To this question we answer, “No;” for, when a writ of attachment comes to the hands of an officer authorized to serve it, it is his duty to execute it without delay ; and when he has done so by seizing and taking into his possession property liable to be taken in execution for the defendant’s debts, his possession is the possession of the court upon whose order the writ issued, and the property seized is in custodia legis, and no valid levy can be made upon it that will authorize a second seizure of it; and if the officer take possession of property already levied upon and in the possession of another officer, holding under a junior attachment first levied, by force, he is liable in trespass to the officer making the first levy. An officer, by a seizure of goods under mesne process or execution, acquires a special property therein, founded upon his responsibility for the safe custody thereof. Ludden v. Leavitt, 9 Mass. 104; Badlam v. Tucker, 1 Pick. 389; Lowry v. Walker, 5 Vt. 181; Lathrop v. Blake, 3 Foster, 46; see also Drake on Attachments, secs. 221, 224, 231, 251, 255, and n. 2, 267, n. 1, 290, 291. 2. Priority of attachments. The second question in this case is, which writ is entitled to prior right of satisfaction, the one first levied, or the one which first came to the hands of the officer ? It is proper to remark here that the decision in Cross v. Fombey, 54 Ark. 179, does not settle this question. Section 341 of Sand. & H. Dig. provides that “an order of attachment binds the defendant’s property in the county, which might be seized under an execution against him, from the time of the delivery of the order to the sheriff or other officer; and the lien of the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this chapter.” We construe this to mean, as contended by the counsel for appellee, that an order of attachment binds the defendant’s property, subject to execution in the county, so that the defendant cannot sell, transfer or dispose of it, after the writ comes to the hands of the officer, so as to defeat the right of the plaintiff, if his attachment is sustained, and he obtains judgment, to have the property sold, and the proceeds applied in satisfaction of his debt. It seems to be well settled that the first levy obtains the first right to satisfaction, without regard to the teste or receipt of the writ by the officers, where the writs are in the hands of different officers, and are levied upon personal property. Drake, on Attachments, sec. 255, and cases cited. In 1 Freeman, Executions, sections 195,196, it is said : “The lien of an execution, like other liens, does not of itself transfer title. It does not change the right of property, and vest it at once in the plaintiff in the execution nor in the officer charged with the execution of the writ. It confers, however, the right to levy on the property to the exclusion of the transfers and liens made by the defendant subsequent to the commencement of the execution lien. * * * But an execution lien does not necessarily take precedence over the liens of junior executions. There may be several writs in force against the same defendant at the same time. Some of these may be in the hands of a United States marshal, others in the hands of the sheriff of the county, and others in the hands of a constable. Now, if these several writs were to enforce judgments which were liens on real estate, the older judgment lien would prove paramount, irrespective of the teste, delivery or levy of the respective writs. But if there are no liens except such as arise from the writs, the rule is different. The officer who succeeds in making the first levy thereby obtains priority for his writ, and secures it the right to be first paid out of the proceeds of the sale.” (See cases cited in note 1 under this section.) This being the law in regard to the right to priority of satisfaction between a senior execution and a junior execution which is first levied, it applies with equal force to a senior and junior attachment, when the latter is levied first, because our statute (sec. 3048) expressly makes an execution a lien on the property of the defendant in any goods or chattels or the rights or shares in any stock or any real estate from the time .such writ shall be delivered to the officer in the proper county to be executed. The decision in Cross v. Fombey does not contravene this doctrine. 3. Practice upon default as to allegations of value* The third point in the case is that there is no proof of the value of the goods taken from the constable by the sheriff, and this objection appears to be well taken. The complaint alleged the value of the property to be seventy-five dollars, and this is not controverted in the answer; but sec. 5761, Sand. & H. Dig. (latter clause), provides that, “allegations of value, or of amount of damage, shall not be considered as true by the failure to controvert them.” Por failure to prove the value of the property taken from the constable by the sheriff, the judgment is reversed, and the cause is remanded for a new trial.