J. M. W. Jones Stationery & Paper Co. v. Case

The opinion of the court was delivered by Brewer, J.: There is but a single question in this case. Under process regular and valid, a constable levied upon certain personal property; thereafter, under process from a different court, another constable attempted to levy upon the same property while in the possession of the first constable. Was such attempted second levy good? In other words, is property duly levied on and in the possession of the officer making the levy, subject to levy by another officer holding [303] process from the same or a different court? So far as to the form of the actions and the regularity of the proceedings, the agreed statement shuts them out from consideration, and leaves to us the single question above named. Reluctantly we answer this question in the negative; it is a general truth that when property has been once seized and taken into possession by any officer under any valid process, it is in custodia legis, and beyond the reach of further touch or attack except as prescribed by statute. “In general, when things are in custodia legis, they cannot be interfered with by a private person or by another officer acting under the authority of a different court and j urisdiction; they are in the custody of the law until the proper time of their sale, and for such a reasonable time thereafter as may be necessary for the purchaser to remove them. During this time they are beyond the reach of seizure by any other execution, attachment, or any other writ.” (Herman on Executions, § 173.) The same doctrine is affirmed in Freeman on Executions, § 135, and supported by a large number of authorities cited by the author. It is true the authorities cited refer generally to cases in which process issues from courts of different jurisdictions, but the principle which underlies and determines those cases controls here. The principle is this: In order to make a levy there must be possession — at least this is true of personal property. Bouvier’s Dictionary (vol. 2, page 39) says that “in order to make a valid levy on personal property the sheriff must have it within his power and control;” in other words, in order to make a valid levy, the officer levying must have full and exclusive possession. It matters not what outside or ultimate rights there may be, the officer levying an execution upon personal property must have that property in his absolute and exclusive possession, and this partially at least for his own protection, because he becomes responsible for the property to the plaintiff in his execution. A levy means this and nothing else. (Civil Code, § 444; Goode v. Longmire, 35 Ala. 668; Davidson v. Waldron, 31 Ill. 120; Douglas v. Orr, 58 Mo. 573; Allen v. McCalla, 25 Iowa, 464.) And secondly, when [304] property is thus levied upon, when it is in possession of an officer of the law, when it is as the law books say in custodia legis, it is safe from touch or seizure. Of course we are not now considering direct proceedings, such as replevin, etc. It matters not whether the officer in possession be a constable, a sheriff, or a receiver — it is still in custodia legis. It is true the remedies may be different whether the possession be that of a constable or a receiver, but still the ultimate fact is the same, that the possession is the possession of the law. Such possession when once established is absolute and exclusive; it cannot be interfered with, it cannot be divided. When a sheriff has levied, a marshal cannot touch, and vice versa; when a sheriff has levied, a constable cannot touch, and vice versa; when a constable has levied, no other constable can touch. The levy made must in some way be carried out to completion, whether by sale of the property or by payment of the judgment before any other legal process can attach, because if the first levy implies absolute and exclusive possession, there is nothing for the second levy to touch. There is no provision of statute for dividing the possession. The first officer owes no duty to the second officer; none to the plaintiff in the last judgment. If the process in his hands is satisfied — and it may be satisfied before and without any sale — or if the plaintiff in the judgment directs the return of the process, his duties are discharged, save that the property unsold he must return to the defendant. By no statute is he required or authorized to hold it for the benefit of any other constable, or the plaintiff in any other judgment. The defendant has a right to it by reason of his ownership, and no statute casts any right upon the officer to retain possession for the benefit of any other officer, or will protect him against an action of the defendant for refusing to return it to him. It certainly would not be just for the second officer to charge him with the responsibility of a second levy, when he can take no possession, cannot interfere with the possession of the first officer, cannot know absolutely when that possession will cease, and when the first officer owes him no duty, for it [305] would be casting upon him a responsibility without giving him the power of protecting himself, and throwing him upon the mercy of another officer, who owes him no duty, and may have no desire to assist him. The case of Benson v. Berry, 55 Barb. 620, seems to be authority in favor of the defendant in error, but that decision may find warrant in the special statutes of New York, and if not so authorized, is in conflict with the principles underlying the authorities cited in Herman and Freeman, above noticed, as well as with the general rules determining the scope and effect of a levy. It might be well if there were a statute making provision for a second levy, and requiring the officer making the levy to retain the property for the second officer, after his own process has been satisfied, and making the sureties on his bond responsible for delinquencies in that respect. Such a provision would doubtless be in the interests of justice, for now the only security to the second judgment creditor seems to be in the provision that the first officer shall only levy upon property apparently sufficient to satisfy his debt, and this provision will often be found inadequate to secure the just rights of all; but until the legislature does make some such statutory provision, it seems that the absolute possession required to perfect a levy prevents any further seizure by any other officer. The judgment of the district court will therefore be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. The costs, as by the stipulation, will be paid out of the proceeds of the property. All the Justices concurring.