Horgan v. Lyons

Buck, J. On the 16th day of October, 1893, one John Hill recovered a judgment against John B. Weimer, in the Municipal Court of the city of Duluth, for the sum of $67.75. The same day an execution was issued against the defendant, Weimer, and placed for1 service in the hands of the plaintiff in this action, Frank Horgan, who was at that time chief of police of the city of Duluth. On the 25th day of October, 1893, by virtue of such execution, he levied upon the property in controversy, viz. one round-top office desk, one oak office chair, four common office chairs, one letterpress with stand, one flat office desk, and one oak office table, as the property of said Weimer. Prior to the time of the levy, Weimer had an office in the Chamber of Commerce building in Duluth; but at the time of the levy he was absent, and his office was kept locked, except a clerk or employé who worked for him had a key to the office, and had a desk there, and visited the office nearly every day. It appears that, while Weimer was absent, he left this property in his office, where it was at the time of the levy. Prior to the time of the levy, Weimer and Lyons had some conversation in regard to the payment by Weimer to Lyons of a bill for services rendered to Weimer by Lyons as janitor. There appears to have been some conflict in their evidence as to whether there was a sale of the property levied upon, or whether it was agreed between them that Lyons should [220] take it as security for the bill for services rendered by Lyons to Weimer. Upon this question the court below found that the transaction was not a sale of the property, so far, at least, as against the levy. Although the defendant claims to have bought the property prior to the date of the levy, yet he allowed it to remain in Weimer’s office from about September 5, 1893, to some time in November of that year. It was in Weimer’s office when the plaintiff levied upon it, and there had been no delivery followed by an actual and continued change of possession. See Murch v. Swensen, 40 Minn. 421, (42 N. W. 290.) We are also of the opinion that there was a valid levy by the plaintiff upon the property in question, except, perhaps, as against a subsequent purchaser in good faith; and defendant does not stand in any such relation, for, if he had any right to the property, it was by reason of an arrangement with Weimer prior to the date of the levy. Just what constitutes a levy frequently depends upon the facts in the case. “The levy of an execution is the seizure by the officer of the debt- or’s property under the writ, and the taking possession of it or subjecting it to his control.” 7 Am. & Eng. Enc. Law, 148. When the property is once levied upon and taken, and is under control of the officer, he may leave it with a receiptor, or even with the debtor as his agent, or with a third party, subject to the officer’s control. Within these rules we are of the opinion that, upon the evidence, the court below was correct in its decision. Of course, if the judgment was unsatisfied, and the execution in force and the levy valid, the defendant was liable for interfering with the property, and the plaintiff could maintain an action against him for so doing. The order denying a new trial is affirmed. Gileillan, C. J., absent on account of sickness; took no part. (Opinion published 60 N. W. 10D9.)