Ohlson v. Pierce

OetoN, J. It is quite apparent that this cause was tried throughout upon a wrong theory, and the first grave error was in not sustaining the objection of the appellant to any evidence under the answer, on the ground that it stated no defense to the action. This is not a case of mere negligence in not making a levy or in making an insufficient one, where only reasonable diligence under the circumstances would be required, but a case of the violation of a positive 'duty enjoined by law to levy executions in the order of time in which they come into the hands of the officer, upon all the property of the judgment debtor. Eor not doing so in this case there can be but one legal excuse, and that is the interference with the discharge of this duty by the appellant, which - caused his execution to lie dormant or to be deferred to the junior execution. If, without this excuse or justification, the respondent, as sheriff, omitted to levy the execution of the appellant upon the schooner in which one of the judgment defendants owned a one-fourth interest, or omitted to levy the junior execution subject to that of the appellant, he acted at his own risk and is liable to the appellant. Ordinary diligence, honest motives, or mistaken judgment will be no defense in such a case; for, if it could be, the positive requirements of the law in this respect would be of little avail in preventing partiality and injustice, and a clear legal right might be defeated by a great variety of excuses. The answer sets up “that at the time of making said levy the plaintiff well knew of the interest in said vessel being owned by said Thompson, but did not inform the defendant thereof, nor request the defendant to levy thereon, and that it was supposed and believed by this defendant and by said plaintiff that the levy on the stock of merchandise would . be amply sufficient to satisfy plaintiff’s judgment.” It is not alleged, and it was not proved, that the appellant did or said anything, or that he did not remain entirely passive throughout — 211 — until the commencement of this suit. The answer seems to be based upon the appellant’s negligence in not directing a levy upon the vessel and in his not forbidding its sale on the junior execution; and it asserts only conditions of the appellant’s mind, that he supposed and 'believed the first levy sufficient, without alleging that he ever informed the respondent that he so supposed or believed. It is doubtful whether such an opinion expressed by the appellant would have excused or justified the sheriff in disregarding the requirements of the law in this respect, but this even was not alleged or proved. The glaring fault of - the defense is apparent in the ninth finding of fact by the jury, “ that the plaintiff was satisfied and content with the levy as made by the defendant under his execution, and believed that an adequate and sufficient amount of property had been seized thereunder to satisfy his execution.” There was not a particle of evidence to sustain this finding, of anything the appellant had ever said or done, and this finding is an inference only from what he did not say or do, and besides, it is outside of any issue made by the answer, for it is not alleged that the plaintiff was “ satisfied'' and content with the levy, ” but only that he supposed and believed it was sufficient. In the sequel it appears that the levy was quite insufficient, and that the amount and value of the property levied upon, subject to prior claims upon it, was vastly over-estimated, at least by the respondent, and whether honestly so or not is quite immaterial to this case. In re Mowry, 12 Wis., 53; Herman on Ex., 242. Much is said in the evidence, in the charge of the court, and in the findings, as to the supposed value of the accounts and notes belonging to the defendants in the execution at the time, when in law they were not subject to seizure on execution, and according to the return made upon th,e execution by the respondent, as. sheriff, they were not in fact levied upon, and his return is conclusive on that question. Sheldon v. Payne, 1 N. Y., — 212 — 453; Eastman v. Bennett, 6 Wis., 232. This serves to show the danger of departing from the strict rule of the liability of a sheriff in not following the direction of the law in levying executions in their order of time, and in allowing evidence of ordinary diligence in excuse of this violated legal duty. Eor the respondent sets up that the appellant directed him to levy on these accounts and notes, and that their value was estimated in determining the sufficiency of the levy, as evidence of due diligence and honest mistake. The statute requires that, “ upon the receipt of any execution, the sheriff or other officer shall indorse thereon the year, month, day, and hour of the day, when he received the same.” Section 2972, R. S. The only possible object of this statute is, that the -officer shall proceed to levy executions in the precise order of time in which they are so received and indorsed, and to confer upon an execution plaintiff a priority of right to such levy, and therefore a prior lien upon the property of the execution defendant; for by another statute his personal property is not bound until seized under execution. Section 2985, R. S. Even the exact hour of the day when the execution is received must be indorsed, so that the diligent plaintiff may have the benefit not only of the priority of right given by the statute, but of the equitable right secured by the maxims, qui prior est tempore, potior est jure, and vigilcmtibus et non dormientibus jura subserviwit. As to the general duty of a sheriff upon the receipt of an execution, the language of Mr. Justice Lyon in Elmore v. Hill, 46 Wis., 618, approved by the present chief justice in the same case, 51 Wis., 365, is pertinent to this case: “ The result of the adjudications on the subject seems to be, that, on receipt of the execution, in the absence of speeifio mstruetions, the officer must proceed with reasonable celerity to seize the property of the debtor, if he knows, or by reasonable care can ascertain, that such debtor has property in his bailiwick liable to seizure upon execu — 213 — tion.” The duty of levying executions in the order of time in which they are_ received, is recognized in Russell v. Lawton, 14 Wis., 202; and such duty, in view of the statute, is clearly defined by Chief Justice DixoN in Knox v. Webster, 18 Wis., 406. That case is especially in point, not only in maintaining the strict liability of the sheriff for not complying with the law in this respect, but in the facts; for in that case, as in this, the plaintiff in the prior execution knew of the existence of the property liable to execution, and the sheriff did not until it was turned out by the plaintiff in the junior execution. The language of the chief justice in that case is so appropriate in this, that an extended quotation from the opinion is warranted: “As to the duty of the sheriff in making the levy, we are satisfied he should have levied the senior execution first. The decision in Russell v. Lawton proceeded on this supposition in all cases where the several executions are in the hands of the same officer. The statute, sec. 15, [ch. 134, R. S. 1858], requires the sheriff under the sanction of his official oath, to indorse upon every execution the year, month, day, and hour of the day, when he received the same. No reason is perceived for this unless it be to furnish unequivocal and satisfactory evidence upon which to determine disputed questions of priority and preference among different execution creditors of the same debtor, and to enable the sheriff to guard against mistakes. He is a public officer of whom the law requires the strictest impartiality between those who are obliged to have his services, and this impartiality cannot be enforced except upon the rule that he must at his peril levy and satisfy executions according to their seniority in his hands. Once allow it to be a race of diligence between the different creditors in finding and pointing out the property of the debtor, and what a door to partiality, fraud and strife would be opened! The sheriff might neglect inquiry, or be wilfully ignorant, for the sake of favoring one or oppressing — 214 — another creditor, and the whole controversy would be thrown upon the uncertain testimony of interested and suspicious witnesses. ¥e do not doubt, therefore, that it was the intention of the legislature, as it is the course of reason, that executions should be levied according to seniority, and that the sheriff in this case was not justified in levying the junior execution first because the creditor in that execution had been more successful than himself in finding the property of the execution debtor.” The prior receipt by the sheriff of an execution gives to the execution plaintiff a prior right of levy; but of course such right may be waived or relinquished by any unequivocal act or conduct on the part of the plaintiff, indicating such an intent; but such act or conduct must be of such a character as would waive or relinquish any other legal right. It is inconceivable how this can be done without some interference by the plaintiff with the duty of the sheriff — some direction, authority or consent that his execution lie dormant, and that a junior execution shall have preference and priority of levy; or, as is said in Herman on Executions, 268, “ there must in this case be an interference with the execution of the writ by the plaintiff in order to make it dormant.” As in the case of Kellogg v. Griffin, 17 Johns., 274, where the plaintiff directed the sheriff to make a levy, and then to do nothing more without his order, it was held a fraud as against junior judgment creditors, and the preference was lost. But where the plaintiff remains passive, and neither says nor does anything to interfere with the conduct of the officer, no matter how long he may have silently acquiesced in the delay or misconduct of the officer, his execution will not be declared dormant, and he will not lose his preference, as in Herkimer Co. Bank v. Brown, 6 Hill, 232. Nor will an execution become dormant by mere indulgence or negligence, as in Russell v. Gibbs, 5 Cow., 390. Nor by delay, unless the delay is caused by the interference or direction of the plaint — 215 — iff, as in Benjamin v. Smith, 12 Wend., 404 Nor does tbe receipt of tbe money by the plaintiff, made by the sheriff on his first levy, waive his right to hold the sheriff liable for not also seizing the property upon which the junior execution was levied. Holmes v. Clifton, 10 Ad. & Ell., 673. Nor is the plaintiff bound to turn out property to the sheriff in order to save it from the levy of a junior execution. Albany City Bank v. Dorr, Walker (Mich.), 317. There are many other cases of similar import cited to the text of Herman on Executions, 268; and several are cited in the brief of the learned counsel of the appellant, to which we need not specially refer. We have not had occasion to examine beyond the brief of the learned counsel of the appellant, for it is especially able and complete on all the questions presented by the record. We have not referred to the brief of the learned counsel of the respondent, although able, and evincing ingenuity and research, because the authorities cited are applicable only to cases of the negligence of the officer in not levying or in making an insufficient levy upon the property of the judgment defendant, and strictly applicable to the wrong theory upon which the cause was tried at the circuit. In conclusion, it is proper to say that when the respondent ascertained that one of the defendants owned an interest in the schooner Felicitous subject to levy, the law made his duty plain to levy the execution of the appellant upon it, or to levy the junior execution, if at all, subject to that of the appellant already in his hands, unless he had the authority, direction or consent of the appellant that he need not do so, or unless the appellant in some unequivocal manner had waived his prior right. The insufficiency of the answer in the respects already indicated -was not supplied by any proofs, so that the answer could stand amended in those respects ; and an objection having been made to any evidence under the answer on account of its insufficiency to state a — 216 — defense, the various exceptions in the course of the trial, and to the instructions of the court to the jury and to the findings of the jury, need not be noticed, holding, as we do, that such objection, to any evidence under the answer should have been sustained. By the Court. — • The judgment of the circuit court is reversed, and the cause remanded for a new trial.