Citizens' National Bank v. Loomis

Kinne, J. 2 I. Appellee insists that, even if there was error in the ruling of the court in the respects hereafter spoken of, the same was without prejudice, for the reason that plaintiff has no right to prosecute this suit. The claim is that the assignment of the judgment alone did not carry with it to plaintiff the right to sue the sheriff for damages arising by reason of his alleged negligence in permitting the property levied upon to be disposed of. Just what rights will pass by the assignment of a judgment to an assignee, other than the right to enforce the judgment in the usual way, has never been determined by this court. In this case, the assignment, in terms, related to the judgment only. If, therefore, plaintiff has a right to sue -the sheriff for — 269 — negligence, it is because sucb right passed by the assignment of the judgment, as an incident to it. If appellee’s claim is sound, then no right of action, as against the sheriff, for damages, passed to the plaintiff bank, by the assignment. Now, the right, if any, to recover damages, existed and was vested in Smith, the possessor of the judgment, prior to the time the assignment was made. If it did not pass by the assignment of the judgment, it must still remain in Smith. It can hardly be successfully contended that Smith might part with all his interest in the judgment, and still reserve to himself the right to sue the sheriff for damages arising out of failure to do his duty in relation to the disposition of the property which had been taken on a writ issued by virtue of the very claim upon which the j udgment itself was based. Nor can it be said-that the assignment of the judgment had the effect of absolving the sheriff from liability for negligence in caring for the attached property. Hence we think, if a cause of action existed against the sheriff for damages for such negligence, prior to the assignment of the judgment, it must be held to still exist in favor of some one, inasmuch as there is no claim that it has been satisfied, or-been barred by the statute of limitations. As we have indicated, "Smith, having parted with his interest in the judgment, could not maintain an action against the sheriff, because it was the interest in the judgment, alone, which entitled him to claim damages for the negligent loss of the property upon which he relied for the satisfaction of the same. Now, the original case was by the defendant appealed to this court, where the judgment was affirmed. A special execution properly issued for the sale of the attached'property. That the right to this execution passed by the assignment of the judgment cannot be doubted. So, also, the assignee would have the right to have the property — 270 — sold, and the proceeds applied in payment of the judgment. Now, if the sheriff, has, by negligence, permitted the property to be lost, destroyed, or disposed of, so that it cannot be reached by this special execution, he has thereby deprived the present holder of the judgment of a substantial right, for which, in a proper case, he should be held liable to make restitution, It is the general rule that the “assignment of a judgment necessarily carries with it the' cause of action on which it is based, together with all the beneficial interest of the assignor in the judgment and all its incidents.” 2 Freeman, Judgm. section 431; Ullman v. Kline, 87 Ill; 268; Ryall v. Rowles, 2 White & T. Lead. Cas. Eq. p. 1667; Schlieman v. Bowlin, 36 Minn. 198 (30 N. W. Rep. 879). In the Minnesota case above cited, which was an action upon a replevin bond by the assignee of the judgment, the- court said: “It is a familiar rule in equity, of universal application, that the assignment of a demand entitled the assignee to every assignable remedy, lien, or security available by the assignor as a means of indemnity or payment, unless expressly excepted or reserved in the transfer of the demand. The assignment of the demand, which is the principal thing, operates as an assignment of all securities for its recovery or collection, and upon such securities the assignee, as the real party in interest, may maintain an action in his own name.” 2 Jones, Mortg. sections 829, 1316, 1377. In the Illinois case it was held that an appeal bond was but an incident of the debt, and a right to sue thereon was vested in the assignee of the judgment. As supporting the general rule above stated, see 1 Am. & Eng. Enc., Law, p. 884; 2 Black, Judgm. sections 948, 952. So, it has been held that the assignee of a judgment takes the assignor’s right to enforce the judgment by supplemental proceedings. Burns v. Bangert, 16 Mo. App. 22. We are aware of the fact that there are some authorities which — 271 — fio not go to the extent of those above cited. Thus, in Michigan it has been held that where an attachment was issued and levied upon property, and a statutory bond given to the sheriff by the defendant, who retained possession of the property, and the judgment was afterwards assigned by an instrument that did not mention the bond, such assignment did not authorize the .assignee to sue upon the bond in his own name. Forrest v. O’Donnell, 42 Mich. 556 (4 N. W. Rep. 259). And see Timberlake v. Powell, 99 N. C. 233 (5 S. E. Rep. 410). We think that the assignment of the judgment in the case at bar carried with it the right to the assignee to avail himself of any remedy or means of indemnity, security, or payment possessed by, or which could have been made available tq, the assignor, as against the sheriff. 8 IE. On the trial, the defendant introduced evidence tending to show that, at the time the property was levied upon, the attorney for the plaintiff in that action, directed the deputy sheriff, who made the levy, to place the goods in the custody of one Griffith, as receiptor, and that it was done. The receipt of Griffith for the goods appears on the writ, but not in the return. This evidence, and more of a similar character, was objected to, on the ground that it tended to contradict the return of the officer. The court held, that the return could not be contradicted by parol, but said: “The fact that, by direction of plaintiff, it [the property] was turned over to the receiptor, if it was, does not contradict the levy.” It may be conceded to be the general rule, that a sheriff's return cannot be contradicted by parol evidence; that in a suit by the creditor against the sheriff, his return is prima facie, if not conclusive evidence against the officer. Tillman v. Davis, 28 Ga. 494; Crocker Sher. section 46; Murfree, Sher. section 866; Macomber v. Wright (Mich.) (65 N. W. Rep. 610); — 272 — Drake, Attachm. sections 204, 206; 1 Shinn, Attachm. sections 226, 227; 22 Am. & Eng. Enc. Law, pages, 688, 684. By an examination of the foregoing authorities, and the cases therein referred to, it will be seen that there are many exceptions to this .rule. Our statute provides: “The sheriff shall return upon every attachment what he has done under it. The return must show the property attached, the time it was attached, and the disposition made of it. * * *” Code, section 3010. It is also well settled, that return upon a writ of attachment is evidence only, of what can properly be embraced in the return. In Aultman v. McGrady, 58 Iowa, 118 (12 N. W. Rep. 233), it is said: “There is no provision for a return showing the acts of any one but the officer. A statement in the return purporting to show the acts of some one other than the officer, is without authority of law, and surplusage.” The provisions as to returns on executions are substantially the same as those relating to a return on a writ of attachment. Therefore, a return embracing matters not required by statute, or which relate to acts done outside of the officer's duty, would not be receivable as evidence of such facts, nor would it in any way conclude the parties. 1 Shinn, Attachm. section 227; Freeman, Ex’ns, sections 364, 366; Plow Co. v. Jones, 71 Iowa, 238 (32 N. W. Rep. 280); Murfree, Sher. section 867. Under the authority of Aultman v. McGrady, supra, the sheriff was not required to set out in his return the fact, if such it was, that he had delivered the attached property to Griffith, the receiptor, in pursuance of the directions of the plaintiff. That would have been the recital of- the acts of persons other than the officer, which the statute does not require to appear in the return. Now, it might be proper to show in the return the fact that the officer had turned the goods over to a party named as a receiptor, but to set out — 273 — that such action was taken at the.request or direction of some one is not within the requirements of the statute. While the fact of the placing of the property in the hands of Griffith as a receiptor did not appear in the return, it did appear from Griffith’s receipt on the back of the writ. Surely, no prejudice could arise because the naked fact that the property had been placed in the hands of some one as receiptor did not appear in the return. So far as the plaintiff was concerned, that fact, if stated in the return, would not have advised it that the property was placed in the receiptor’s hands by the direction of its assignor. 4 Counsel for appellant says: “We grant that it was not necessary to state in the return the simple and unqualified fact that the officer had left the property with the receiptor, but insist that, to save himself from being liable on his return for its negligent loss, it was necessary to state the fact, if a fact, that he did so by direction of the judgment creditor.” The contention appears to us, in view of the requirements of the statute, to be unsound. The return stated all that the law required. To have set forth the fact that, by direction of the judgment creditor, the property had been placed in Griffith’s hands, would have been the recital of the fact or direction of one other than the officer, and, as we have seen, was not proper. The evidence introduced over plaintiff’s objection was as to a fact not required to be stated in the return, and therefore properly no part of it, and hence it did not tend to contradict the return. 5 It is said that, because the sheriff’s return shows that he holds the property subject to the order of the court, therefore evidence that it is- held by a receiptor, under the direction of the judgment creditor, is a contradiction of the return. We do not think this is so. In a sense, at least, the property, having been levied upon by the officer, is in his — 274 — possession, even though in the hands of a receiptor nominated by a judgment creditor. “When the property attached is by the officer delivered into the hands of a keeper or receiptor, such person is the agent of the officer making the attachment, and for his torts or negligence in respect to the property the officer is liable. When, however, the property is delivered to a bailor named by the plaintiff, the officer is relieved thereafter from responsibility to the plaintiff for the safe keeping of it.” 1 Shinn, Attachm., section 392. Ordinarily, and in the absence of evidence to the contrary, it would be presumed that the possession of the receiptor was the possession of the sheriff. Nor does it cease to be such because, by reason of his own acts, the judgment creditor is not in a position so that he may hold the officer personally liable for damages which arise by reason of the receiptor’s negligence. The property attached, though left with a receiptor by direction of the judgment creditor, is still in the custody of the sheriff. If it were not so, the levy would, in law, be abandoned. Drake, Attachm. (7th Ed.), section 350. We are of the opinion that the evidence objected to was properly admitted, and that it did not contradict the return of the officer. 6 TIT. There can be no doubt that the officer levying the attachment had the right to deliver the property to Griffith, the receiptor, by direction of the judgment creditor, the plaintiff in that action; and, if he did so by the direction of said plaintiff, or his attorney, he would be relieved from personal liability. Davis v. Maloney, 79 Me. 110 (8 Atl. Rep. 350); Shepherd v. Hall, 77 Me. 569 (1 Atl. Rep. 696); Drake, Attach. (7th Ed.) section 361; Jenney v. Delesdernier, 20 Me. 183; Willard v. Goodrich, 31 Vt. 597; Strong v. Bradley, 14 Vt. 55; Donham v. Wild, 19 Pick. 520; 1 Shinn, Attachm. section 392. It — 275 — is said in Freeman on Executions (2d Ed., section 108): “One inquiry will be answered here. Who is entitled to control tbe writ? Tbe officer should always bear in mind that the writ is intended for the benefit of the plaintiff, who alone is interested in its enforcement. The interests and wishes of the plaintiff should at all times be respected. * * * But all directions of the plaintiff not savoring fraud nor undue rigor and oppression must be obeyed, or the officer will be held itable for injuries flowing from his disobedience.” 7 IV. It is said that the testimony admitted showed an agreement, and that parol evidence should not have been admitted to establish it. Our Code (section 218) provides that an attorney and counselor has power “to bind his client to any agreement, in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreem ent is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.” It is claimed in this case that the direction to turn the property over to Griffith, the receiptor, was given by the attorney for the judgment creditor. He denies so doing; hence it is said the evidence of the deputy sheriffs was not admissible. If this direction of the attorney to place the property in Griffith’s hands as a receiptor was given, and if it can be said to constitute an agreement, within the meaning of the statute, then the testimony should not have been admitted. That it was not an agreement in a statutory sense seems too clear to admit’ of a doubt. It was simply an order or direction given to the sheriff, which it is claimed, he com-. plied with. — 276 — We have considered every question raised which is deemed of importance, and reach the conclusion that there was no error in the respects complained of. —Affirmed. *Notb. — This case was held out on re-hearing and will appear in a later Iowa report. — Repobieb.