Belcher-Stine Lumber Co. v. Burns

Ostrander, J. I do not think the record supports the conclusion that the attachment proceeding was void in the sense that it was a nullity, that the court had no jurisdiction, and that a judgment rendered therein would upon its face have been without force or effect. The record discloses that the lumber which the defendant, as sheriff, took into his possession in executing the [467] writ of attachment was sold by the sheriff at the instance of the plaintiffs in attachment, and the money turned over to said plaintiffs. It seems to me, therefore, that the question presented is this: Did the sheriff sell lumber which belonged to the plaintiffs ? If not, he is not liable for its conversion. The plaintiffs in attachment had no contract with the plaintiff in this suit. Their contract was with the copartnership. That contract provided that the title to the lumber should pass to said copartners— “As soon as the same is cut and piled in said millyard, subject only to lien of said first party for the purchase price of said lumber.” The record discloses that, as between the said copartnership and the plaintiff herein, it (the plaintiff) assumed the contracts of the copartnership, but without acquainting the owners of the lumber with the fact that a corporation had been formed. If the plaintiff owned the lumber in question, it is because title to it passed to it upon its delivery on board cars after it had paid for the same according to the terms of the contract. The contract provides : “ Terms of payment to be four months’ note to be given upon rendering invoice for each 500 M. feet of lumber sawed.” It seems to be established, although the record is not very clear upon the subject, that notes of the plaintiff had been given for the particular lumber. I conclude, therefore, that the title to the lumber passed when the same was delivered on board cars and by the terms of the contract itself no lien remained with the former owners of the lumber. The lumber which the sheriff seized was the lumber of the plaintiff, and it had the right to maintain this action. I therefore concur in affirming the judgment of the court below. Grant, Montgomery, and McAlvay, JJ., concurred with Ostrander, J.