Ross v. Weber

Walker, J. That the defendants in error by their agreement with McKinlay to stay their execution, lost all right as between the parties to that agreement, to proceed for its collection, is certainly true. And by entering into a valid and binding contract for the stay of execution, it became dormant as to other judgment creditors. A party having a judgment or execution which is a lien on property, has no legal right to extend the time for its collection, to the injury of other creditors. A judgment creditor so situated has no right to place himself in a position that he cannot proceed for its collection, and at the same time hold his lien so as to prevent others from proceeding to satisfaction. If no agreement were made, it would be otherwise. In this case both executions being in the hands of the officer at the same time, they were both liens on the property in the order in which they were issued ; and there can be no question, that if defendants in error had released their levy, or had their execution returned, that then plaintiff’s execution would have held the property, and he would have been entitled to the money. And it is equally clear, that the agreement to stay this execution by defendants in error, had the same effect as a return of the execution or a release of the levy. It then became the duty of the sheriff to levy and sell the property on the plaintiff’s execution, it then being in his hands, and failing to do so, he became liable to respond in damages for a neglect of duty, in an action for a false return; and this is especially so, from the fact, that the deputy sheriff states that he had notice of plaintiff’s claim, and as he took the precaution to have an indemnifying bond, before he paid over the money, we may fairly infer that he had notice of the grounds of his claim. The question is then presented whether the plaintiff after recovering his judgment against the sheriff for a false return, by entering a remittitur barred himself of the right to again recover the sum so remitted. The plaintiff had no right when he had recovered the full amount of an entire sum, to remit a portion of it, and again recover it, of the same or another defendant. The question • here presented is not, whether the plaintiff in the first place had the right to sue defendants for ■ money had and received to their use, but having a complete remedy against the sheriff, and having elected to persue it, and having sued and recovered, he had no right to withdraw his election and resort to an action against the defendants. Having recovered an entire demand he could not split it, by entering the remittitur. We are for these reasons of the opinion that there is no error in this record, and that the judgment of the court below must be affirmed. Judgment affirmed.