Oeters v. Aehle

Napton, Judge, delivered the opinion of the court. The thirty-second section of the attachment law authorizes the court or judge, when property seized on attachment is likely to perish or depreciate in value before the probable termination of the suit, to order a sale of it. The proceeds of the sale, in such cases, are retained by the officer making it, to be disposed of as the property itself would have been, had it remained in specie. This power is confided to the court for the benefit of both parties, debtor as well as creditor. The writ issued by the court or judge, is not at all in the nature of a writ of execution, subject to the control of the plaintiff or his attorney. The plaintiff, at the date of its issuance, has no judgment and may never get one. The object is simply to change the form of the property for the benefit of all parties concerned, and the sheriff or other officer to whom the writ is directed is no more under the control of the plaintiff than of the defendant. If he neglects to execute the writ at the time he is ordered to sell, his responsibility will depend, as in similar cases of disobedience to the proper mandates of the court, upon the validity of the excuse he may offer, and the mere order of the plaintiff would constitute none whatever. The doctrine concerning the effect of a plaintiff’s holding up an execution or stopping proceedings under it, after a levy, as it regards other creditors is not applicable to the proceeding in this case. It is a mere order, made during the progress of the cause, at the instance of either party, or upon the mere motion of the court, to keep the property attached from being wasted. Whether complied with or' not is a matter which does not affect other creditors, who. can proceed with their claims against the debtor and his property just as well in one case as the other. If injury results from delay or non-compliance, the officer would, of course, be responsible to the party upon whom the loss ultimately fell. Judgment affirmed; Judge Ewing concurs. Judge Scott absent.