Lustfield v. Ball

McGrath, C. J. On March 21, 1893, Edward Sweeney recovered judgment in justice’s court against the Deer River Lumber Company. On March 27, 1893, defendant’s attorney filed with the justice the following paper: “ Edward Sweeney, Complainant, vs. “Deer River Lumber Co., Defendant. Before John Morrison, one of the Justices of the Peace in and for the County of Iron. “County of Iron — ss. “ Whereas, judgment was rendered in the above-entitled cause on the 21st day of March, 1893, by the above-named John Morrison, one of the justices of the peace in and for said county, in favor of Edward Sweeney, the above-named plaintiff, against the Deer River Lumber Company, the above-named defendant, in the sum of $188.71 damages, and $5 cost of suit: “ Therefore I do acknowledge myself surety for the stay of execution on said judgment, and for the payment by said defendant to the plaintiff of said damages, with interest and said costs, at or before the expiration of 6 months from the commencement of said suit, and do agree to pay the same to said plaintiff at or before the expiration of the time aforesaid. “Witness my hand and seal this 27th day of March, A. D. 1893. “Adolph Lusteield. [l. s.] “Signed, sealed, acknowledged, and delivered in the presence of [19] “ John Morrison, “Justice of the Peace. “I approve of Adolph Lustfield as surety for the stay of execution aforesaid. “John Morrison, “Justice of the Peace. STATE OF MICHIGAN, “ County of Iron. “Adolph lustfield, the surety to the foregoing stay of execution, being duly sworn, says that he is worth the ■sum of $500 in property liable to execution, over and.. above all liabilities and exemptions. “Adolph Lustfield. “Subscribed and sworn to before me this 27th day of March, A. D. 1893. “Albert Elewelling, “Notary Public, Iron County, Michigan.” At the expiration of the time, execution was issued, and ■a levy was made upon certain goods in Lustfield’s store. The goods were selected, set apart, placed in boxes, and ■Charles Lustfield, a brother of complainant here, who was the clerk in charge of the store, gave a receipt for the goods, as follows: “ Eeceived September 9, 1893, of the said sheriff, 'Thomas Ball, the goods and chattels above mentioned, which I promise to deliver to him at the store of Adolph Lustfield, in the village of Crystal Falls, in the county of Iron, on the 18th day of September, 1893, before 10 •o’clock in the forenoon; or, in default thereof, I do hereby agree Avith the said Thomas Ball, the said sheriff, to pay him the amount due upon the said execution, and costs .and interest. “Dated September 11, 1893. Charles Lustfield.” When the sheriff returned for the goods, he was unable to find them. Charles Lustfield stated to the sheriff that “the store had been robbed; they were taken; they were not there, anyhoAV.” The sheriff asked if there were any locks broken, or bolts, or doors, or anything of that kind, that he knew of, and Lustfield said he guessed not. Com [20] plainant claims to have been away from the store when the levy was made, and to know nothing about the whereabouts of the goods; that when he came home he was told of the levy, and asked what became of the goods, — where the goods were, — and his brother said, “'That is all right/ I didn’t pay any more attention to it. He says, 'I gave them a bond.’” It is urged that the undertaking of the surety is not in accordance with the statute, under the rule laid down in Cox v. Crippen, 13 Mich. 502, and this bill is filed, alleging that the sheriff threatens to make another levy, and praying that the paper purporting to be a stay of execution be declared to be null and void as against complainant, and that it be delivered up, canceled, and destroyed; that the sheriff be restrained from levying said execution upon the moneys or effects of complainant; that the justice be restrained from issuing any further execution upon such judgment against complainant, and from making any transcript of said stay of execution, and that plaintiff in said judgment be restrained from taking out a transcript to the circuit court. We think that the stay is good under How. Stat. § 6963. As to the other question, the goods seized on the execution were left in complainant’s store in possession of complainant’s brother, who was complainant’s clerk, and the record does not satisfactorily show that complainant was divested of the goods. A levy under an execution on personal property sufficient to satisfy such execution is ordinarily regarded as a satisfaction of the judgment, but it does not so operate when the property is left in charge of the execution debtor, and by some act for which he is responsible, or in which he acquiesces, it is placed beyond the power of the officer, or when the debtor converts it to his own use, or where he has not been actually [21] ■divested of tbe property. 2 Freem. Ex’ns, §§ 261, 269; Starr v. Moore, 3 McLean, 354; U. S. v. Dashiel, 3 Wall. 688; People v. Hopson, 1 Denio, 574; Bank v. Hallett, 8 Cow. 192; Mickles v. Haskin, 11 Wend. 125; Cummin’s Appeal, 9 Watts & S. 73; Young v. Cleveland, 33 Mo. 126; Cornelius v. Burford, 28 Tex. 203; Wade v. Watt, 41 Miss. 248; Cooley v. Harper, 4 Ind. 454; Smith v. Hughes, 24 Ill. 270. The decree dismissing the bill is affirmed, with costs to ■defendants. Long, Grant, and Montgomery, JJ., concurred. Hooker, J., did not sit.