State ex rel. Mann v. Brophy

Cole, J. In the former opinion filed in this case, we stated-our conclusion that the sheriff could be proceeded against as for contempt, under the provisions of ch. 149, R. S., for a willful neglect of duty in failing to make a levy upon an execution in his hands as directed by the attorneys of the judgment creditor. The counsel for the sheriff contended then as now, that sec. 115, ch. 13, R. S., prescribes the penalty for such default or misconduct on the part of the sheriff, and insist that as this is a special provision relating to that particular subject, it controls the general provisions found in ch. 149. But we think there is no necessary conflict between the various provisions of the statute referred to. According to our view, the proceeding under sec. 115 is for a criminal contempt, where the fine imposed goes into the state treasury for the benefit of' the school fund. It is a purely criminal proceeding for the punishment of an offense or a violation of duty on the part of the sheriff. Its primary object is to vindicate the authority and dignity of the court whose process the sheriff has neglected to return or to execute as therein commanded ; and, to that end, this provision enacts that the sheriff shall be liable to fine or attachment, or both, at the discretion of the court, but the fine [425] in no case can exceed $200. The proceeding Eor contempt under ch. 149, which was resorted to in the present case, was to enforce a civil remedy and to protect the rights of a party in a civil action. Its object is to indemnify a party for the actual loss sustained by the misconduct complained of. It is solely for the benefit of the party injured, and therefore is not to be confounded with a prosecution for a criminal contempt, to punish some violation of duty on the part of the officer. The distinction is clearly pointed out in the case of State ex rel. Chappell v. Giles, 10 Wis., 101; and there can be no doubt that it is well founded. There can, therefore, be no repug-nancy, as claimed, between the provisions of the two statutes, authorizing, as they obviously do, proceedings quite different in their nature and object — the one intended to punish conduct which impairs the authority of the court and impedes the due administration of justice, and the other calculated to indemnify a party for the loss or injury produced by the misconduct alleged. Ch. 149 so clearly authorizes every court of record to punish as for a contempt any neglect or violation of duty on the part of its officers by which the rights and remedies of a party in a cause in such court were impaired, impeded or prejudiced,' that it is deemed unnecessary to do more than refer to its provisions for a justification of the proceeding in the present case. The question as to what practice should be pursued was the only one about which we had any doubt upon the former argument ; and upon that point further discussion was desired. The proceeding against the sheriff was by an order to show cause why he should not be punished for his alleged misconduct in failing to make a levy upon the execution. And the doubt we had was, whether, in such a case, interrogatories should not be filed touching his neglect, and his answers thereto required, under sec. 19, before the court proceeded to award punishment. The counsel for the relators insist that when the court grants an order on the accused party to show [426] cause why, he should not be punished for his alleged misconduct, if, upon the return of the order, the party proceeded against in answer thereto admits all the facts constituting the contempt, then interrogatories are unnecessary. And authorities in New York are referred to, construing the statute of that state, which is similar to our own, and whence ours was doubtless derived, which fully sustain this position. In McCredie v. Senior, 4 Paige, 378, Chancellor WalwoRTH, while considering the question of practice under the statute of that state, in substance remarks, that two modes of proceeding are authorized: one by attachment, and the other upon an order for the accused party to show cause why he should not be punished for the alleged contempt. Upon the day appointed, in the latter case, he observes, if the contempt is admitted, or no cause is shown why the accused should not be punished therefor, the court proceeds to award the punishment. But if the defendant appears and denies the contempt, the court proceeds substantially in the same manner as on the return of an attachment. The same doctrine is laid down by the chancellor in The Albany City Bank v. Schermerhorn, 9 Paige, 372. These cases are referred to with approval in Pœrtner v. Russel, 33 Wis., 194, and Witter v. Lyon, 34 id, 564, as settling the correct practice upon an order to show cause, and as giving a judicial construction of the statute which we are inclined to adopt. See also Matter of Smethurst, 2 Sandf. S. C., 724; Pitt v. Davison, 37 N. Y., 235. In answer to the order to show cause, the sheriff filed his affidavit, wherein he distinctly admits the receipt of the execution and the letter of the plaintiff’s attorneys, dated August 17, 1874, in which he was directed to make levy on the 25th of that month without fail. This letter was received by him on the 18th of August, as he admits, and he offers no excuse or justification for disregarding its instructions. Thus he admits the facts which show that,he violated his duty and was guilty of misconduct, by which the plaintiffs failed to acquire [427] their lien upon the property of the judgment debtor before his bankruptcy. This was practically admitting the contempt, and dispensed with the necessity of filing interrogatories, under the practice clearly established by the New York decisions. It is true, the sheriff positively denies that he wilfully, or with intent to impair or prejudice the rights of the plaintiffs, refused to take any steps towards satisfying the execution; and he avers that he acted in entire good faith at all times after the execution came to his hands, bat was prevented from making a levy by causes stated. One cause or reason stated is, that the execution, when received by him or by his deputy, was not a complete writ, because it was not dated. The omission to date the execution did not affect its regularity (sec. 9, ch. 134, R. S.), and- constituted no excuse for failing to make a levy upon it. Another reason stated in the affidavit as a justification for his delay is, that on the morning of the 26th of August, he was served with an order granted by the county judge of Oconto county, staying all proceedings under the execution. This order was served upon the sheriff on the day after that upon which he had been peremptorily directed to make the levy; and besides, it was clearly void. What the sheriff says in the affidavit in regard to his good faith and intent in the matter, can have no possible relevancy to the question of' neglect, and shows .no cause why he should not be punished for his misconduct. It was his duty to obey the instructions he had received in regard to making the levy. It is stated in the moving papers, upon information and belief, that at the time of issuing the writ the judgment debtor had sufficient personal property liable to sale to satisfy the execution, and this is not denied by the officer. On the 28th of August the judgment debtor was adjudged a bankrupt. If the sheriff had performed his duty, he might have collected the amount of'the execution. Under these circumstances, the amount of the execution is the sum which the sheriff ought to pay to indemnify the plaintiffs for the actual loss or injury [428] which they have sustained by his misconduct. As a general rule we must presume that the plaintiffs were damnified to this extent, when prima facie it appears that the judgment debtor had property not exempt sufficient to satisfy the execution, which was within the reach of the officer, and upon which he might have made a levy had he exercised due diligence. These remarks, together with what is said in the former opinion, dispose of all the material questions in the case. By the Court.— The order of the county court is affirmed.