Shreck v. Gilbert

Norval, J. On the 20th day of February, 1893, Ab. Kirchbaum & Oo. recovered judgment in the district court of Lancaster county against W. T. Scott and E. A. Gilbert, lawyers doing business under the name and style of Scott & Gilbert, in the sum of $111.39, and $92.90 costs. Subsequently, on July 3, 1893, an execution was issued upon said judgment, which was directed to, and placed for service in the hands of, G. W. Shreek, as sheriff of York county. The writ was levied by the officer upon the law library and office furniture of said E. A. Gilbert, who brought this action in replevin against the sheriff, and the possession of the property seized under the execution was delivered to Mr. Gilbert. The trial of the replevin suit resulted in a judgment in his favor. Defendant has prosecuted a petition in error. Leave from this court having been first obtained, an answer in error has been filed by Gilbert, which alleges substantially that since this proceeding in error was commenced, to-wit, on the 3d day of March, 1896, this court, by a judgment duly entered, reversed the said judgment in the case of Ab. Kirchbaum v. Scott & Gilbert, and upon which the execution issued, and by virtue of which writ the sheriff of York county seeks to justify the seizure of the property replevied, and that a mandate has been issued by the clerk of this court remanding said cause to the district court of Lancaster county, out of which court said execution issued. The doctrine has been frequently decided ■ by the courts that where a party, after appealing or prosecuting an error proceeding — 815 — from a judgment in his favor, voluntarily accepts the benefits of such judgment he waives the right to have the cause reviewed. (Harte v. Castetter, 38 Neb., 571, and cases in the opinion therein.) The rule is that any facts which have occurred subsequent to the judgment assailed, which are claimed to constitute a waiver of the error relied upon for reversal, may be brought to the. attention of the appellate court. In what manner should it be done? We conceive the proper practice to set up, by way of answer, the facts transpiring after the entry of the judgment or final order, which are claimed to constitute a release of error, or an estoppel. The rule is thus stated in 2 Kinkead, Code Pleading, sec. 277: “While it is true that there are no pleadings filed in a proceeding in error, * * * and that the case is heard upon the record, yet a defendant in error may be permitted to file an answer to a petition in error for the purpose of setting up any facts constituting a defense to the proceeding which have occurred subsequent to the rendition of the judgment or order complained of by the plaintiff in error. It is proper practice to allow a defendant in error to allege facts showing that the plaintiff in error has waived the error of which he complains. A settlement, of the case may be shown by an answer in error.” To the same effect are Elliott, Appellate Procedure, secs. 407 and 408; Collins v. Davis, 32 O. St., 76; Mathews v. Davis, 39 O. St., 54. The defendant in error, in the proper mode, has brought to our attention the matter which he claims bars the prosecution of the error proceeding. The question which next confronts us is whether the facts pleaded in the answer to the petition in error renders unavailing the attack made upon the judgment of the court below. The reversal of a judgment wholly vacates and annuls it, and, as a general rule, the party obtaining the judgment will acquire no right or benefit from it. (Markwell v. Pereles, 69 N. W. Rep. [Wis.], 984; Freeman, Execution, sec. 306; Winterson v. Hitchings, 30 N. Y. — 816 — Supp., 260.) The record discloses that no bond was given to supersede the judgment recovered by Ab. Kircbbaum & Co. v. Scott & Gilbert, that an execution was issued upon tbis judgment and tbe same was levied upon tbe property of Mr. Gilbert, which be subsequently replevied in tbis action. Tbe judgment and tbe execution sued . out thereon were valid and in full force wben tbe property was taken from tbe officer under tbe replevin writ, and justified bis action in tbe premises. Tbe gist of a replevin action is tbe unlawful detention of tbe property at tbe inception of tbe suit, and tbe rights of tbe parties with respect to possession of tbe property at tbe time. (Mercer v. James, 6 Neb., 406; Blue Valley Bank v. Bane, 20 Neb., 294; Fischer v. Burchall, 27 Neb., 245; Kavanaugh v. Brodball, 40 Neb., 875; Kilpatrick-Koch Dry Goods Co. v. Strauss, 45 Neb., 793; Brown v. Hogan, 49 Neb., 746.) Tbe sheriff by virtue of tbe levy of tbe execution having tbe undoubted right to tbe possession of tbe property in controversy wben tbe same was taken from him under tbe replevin writ, — unless tbe property was exempt, which will be adverted to hereafter, — it follows from tbe principle deducible from tbe foregoing authorities that tbe reversal of tbe judgment upon which tbe execution issued did not change tbe rights of tbe parties as they existed wben tbe replevin action was commenced. If tbe sheriff did not then unlawfully detain tbe property, be was entitled to a return thereof on tbe trial, or judgmen for bis right of possession. Tbe fact that tbe judgment in tbe action of Ab. Kircbbaum & Co. v. Scott & Gilbert has been reversed on a retrial of tbe replevin suit could be properly shown for tbe purpose of reducing tbe damages and tbe value of tbe officer’s possession. Tbe damages and value of possession would be merely nominal. To adopt the contention of tbe plaintiff below would subject tbe officer to costs, as well as an action for damages for seizing tbe property upon execution, while be was not a wrong-doer. Tbe conclusion we have reached upon tbe question coincides with tbe doctrine — 817 — announced in Wells, Replevin, sec. 791, where it is stated as follows: “According to the general rule, the suit is tried on the state of facts as they existed at the commencement of the suit. This rule must prevail, unless there be some peculiar reasons existing to the contrary. Where the defendant justified as an officer, under an attachment, evidence to show that it was dissolved after the property was replevied was immaterial, as the rights of the parties depend upon the facts existing at the time the suit was begun. * * * But this rule will not prevent the consideration of damages to the time of the judgment, as interest is computed on a note; neither will the court refuse to consider the rights of the defendant to a return at the time return is asked.” (Cobbey, Replevin, secs. 12, 25, 27.) The matters pleaded in the answer to the petition in error are insufficient to justify a dismissal of the proceeding. But the facts so set up may be proven by plaintiff on a retrial of the cause in mitigation of damage, and also as affecting the value of the officer’s possession under the execution. We now pass to a consideration of the merits of the cause. It is argued that the judgment is unsupported by the evidence and is contrary to law. Defendant below, as sheriff, held the property in controversy under an execution against Scott & Gilbert. Mr. Gilbert is an attorney at law residing in this state,- and by reason thereof claims that the property was exempt under the provisions of subdivision 8 of section 580 of the Code of Civil Procedure, which exempts from attachment, execution, or sale on any final process “the library and implements of any professional man.” The sheriff insists that the judgment upon which the execution issued was recovered for moneys received by the judgment debtors Scott & Gilbert, as attorneys at law for Ab. Kirchbaum & Co., and, therefore, the property is not exempt from the payment of such judgment. Section 531 of the Code of Civil Procedure declares that “nothing in this chapter shall be so construed as to exempt any property in this — 818 — state from execution or attachment * * * for money due and owing by any attorney at law for money or other valuable consideration received by said attorney for any person or persons.” It is too plain to require argument or discussion that said section 530 of the Code cannot be invoked to exempt the library of an attorney at law from sale under execution to satisfy a judgment obtained for moneys received by him professionally for the judgment creditor. The statute is a just and wise one, which it is the duty of the courts to enforce. In justice to plaintiff below, it should be stated that the points urged by him are, first, that section 531 cannot be invoked in this case, since neither the judgment in favor of Ab. Kirchbaum & Co., nor the execution issued thereon, discloses that said judgment was founded on a claim for money received by the judgment creditors as attorneys; second, that as a matter of fact the judgment was not for moneys collected professionally. The purpose of the said section 531 was to subject any property of an attorney at law to execution upon any judgment rendered against him for moneys received for the use of his client in the line of his employment. There is nothing in said section which requires that the judgment or execution shall disclose that the recovery was upon a debt against which the statute allows no exemptions to be interposed. It would have been proper practice for the judgment to have found the privileged character of the debt, and had such a finding been made upon an issue tendered, it, doubtless, would have been conclusive upon the question. But we find nothing in the section which makes such a finding essential, and we conclude that the section is available, whenever the exemption is claimed, if it is disclosed that the judgment was recovered upon a debt for moneys collected by an attorney for the use of another person. (Rogers v. Brackett, 25 N. W. Rep. [Minn.], 601; Taylor v. Rice, 44 N. W. Rep. [N. Dak.], 1017.) If it was unnecessary that the judgment should have found the privileged character of the debt, it fcl — 819 — lows no such recital in the execution was required to make such section 581 applicable.. We have examined the authorities cited by plaintiff below, and find them not in point here. The pleading and judgment in the case of Ab. Kirehbaum & Co. v. Scott & Gilbert were introduced in evidence in the trial of the present action. The petition in the case mentioned, after stating that Scott & Gilbert are attorneys at law and practicing at the city of York, avers that “the defendants are indebted to the plaintiff in the sum of one hundred dollars for so much money had and received by the defendants, as attorneys and counselors at law, of and from Hopkins & Cowan, of the city of York, Nebraska, to and for the use of the plaintiffs on or about the 1st day of February, 1888, and which said sum was then due and payable from defendants to the plaintiffs,” and that defendants have unlawfully retained the same, and have paid no part thereof. The amended answer in said cause expressly admits all of said averments excepting the unlawful detention of the money, and, in the nature of an avoidance, pleads the payment of the money in obedience to certain garnishment proceedings brought against them. There having been no testimony introduced in the replevin action to contradict the foregoing documentary evidence, the privileged character of the debt, for the collection of which the execution issued, must be regarded as established. The judgment in this action is reversed, and the cause remanded. Reversed and remanded.