Bennett v. McGrade

McMillan, J. By the Court. After the commencement of the original action against McGrade, Williams, the plaintiff therein, assigned the property and claim for the recovery of which the action was brought, to Bennett. Bennett therefore became the real owner, and although the proceedings were continued in the name of Williams, they were for Bennett’s interest; the bond for the appeal, being one of the subsequent proceedings, although taken in the name of Williams, was for the use of Bennett. The statute of our state, requires “ that every action shall be prosecuted in. the name of the real party in interest,” Bennett being such party, this action, brought upon the bond, is properly brought in his name. It is true that a valid levy upon sufficient personal property of the defendant in an execution is prima, facie a satisfaction of the execution, but the plaintiff may rebut this presumption from a mere levy, and show that the execution or judgment is not satisfied. There is no doubt ample evidence to sustain the finding of the referee, that a valid levy was made upon personal property of McGrade, sufficient to satisfy the execution. Whether the levy was abandoned or not, as found by the referee, ihps very certain that at the time of the levy the property was all left by the sheriff undisturbed in the possession of McGrade and Seifert, his partner, and that no change had taken place in the condition of the property at [135] the time the defendants Strait and Cressey gave the bond; it is also established that the defendant McGrade disposed of the property levied on, to wit, his interest in the partnership .property — about April 1st, 1868, according to his own testimony. It certainly does not lie with McGrade, who has actually disposed of the property levied' on, to say that the levy shall operate as a satisfaction of the debt. Are his sureties in a better condition ? The plaintiff has never consented to a release or abandonment of the levy, but has been pressing his claim with all diligence, and has acted in entire good faith in the premises. The sureties of McGrade were bound to know, and it is presumed did know the condition of affairs affecting their rights at the time of making the bond, if there was no abandonment, that the property was in possession of McGrade, their principal, and that by ■the appeal the proceedings in the action in the court below would be stayed. There was no negligence on the part of the sheriff, as far as appears, in permitting the goods to remain in the possession of McGrade and his partner; nothing has been done upon the part of the plaintiff, or sheriff, of which, as against the plaintiff, the sureties can complain; yet the property levied on is gone; McGrade has disposed of it. Under these circumstances the levy is not a satisfaction of the debt as to either of the defendants. The plaintiff therefore has a right to pursue his remedy upon the bond. The question as to the competency of the second return made by the sheriff as evidence is therefore immaterial. Whether the finding of the referee that the levy was abandoned by the sheriff at the request of McGrade, and that the defendants Strait and Cressey had knowledge of it at The time they ex. ecuted the bond, is strictly correct or not, we are of opinion that the result of the case must in any event be the same, a [136] finding for the plaintiff. A new trial therefore should not be granted. Order affirmed.