Block v. Estes

Rat, J. This action is brought to enforce contribution, as between co-securities, on the official bond of one Lonergan, who was sheriff of Pike county, Missouri, the said securities being F. C. Wiseman, assignor of plaintiff, Nelson B. Griffith, the original defendant (and since deceased), E. F. Mathews, and W. A. Gunn. A judgment was obtained by W. G. and A. G. Brockway against said sheriff and his securities, which was paid off by said Wiseman, the amount of said judgment, so paid, being one thousand dollars. Said Lonergan, the principal in said bond, and, also, said Mathews, are insolvent, and the purpose of this suit is to compel said Griffith to contribute the sum of $383.33-2,-, or, one-third of the judgment for one thousand dollars, so paid by said Wiseman. . The main defence, upon the [321] merits, is, that said Wiseman was not only a co-secnrity with defendant upon said bond, bnt that he was, also, acting as a deputy sheriff under said Lonergan, and that it was his wrongful and negligent acts, in his official capacity as such deputy sheriff, that created the liability of said sheriff, which resulted in said judgment against the sheriff and his securities, and that, under such circumstances, the right of contribution does not exist. It appears that W. Gr. and A. Gr. Brockway brought suit by attachment, which was levied on certain property of J. D, Harrison & Company, defendants therein, on August 5, 1870, and thereafter, and on the tenth day of the same month, certain other attachments, in favor of several other plaintiffs, were levied on the same property of said defendants. Judgment was first obtained, and the property subsequently sold, under execution, in these latter cases, and purchased by Carstarphen, as agent for Dyer, who was attorney for plaintiffs therein, for the sum of $801.85. Said Carstarphen paid said Wiseman the costs, amounting to some seventy dollars, by a check on said Dyer, and also gave said Wiseman the following memorandum, in reference to said purcllcLSO * “$731.50. Louisiana, Mo., Dec. 13, 1870. “This is to certify that I, this day, bought the safe and fixtures of the City Savings Bank, for $801.85, and gave the sheriff a check on D. P. Dyer’s account for $70.35, leaving $731.50 due the sheriff from D. P. Dyer, for the proceeds of sale, to be applied on two executions, in which Dyer is attorney. “ J. E. Cabstaephen, for D. P. Dyer.” Subsequently, said Dyer endorsed said executions, under which Wiseman, as such deputy sheriff, had sold the property, as follows: “Received, December 13, 1870, of P. C. Wiseman, deputy sheriff, $731.50, on this and an execution in favor of Blum & Bro., and against same defendants.” [322] It appears, from the answer of defendant, and the evidence, as offered at the trial, and in behalf of the parties plaintiff and defendant,- and the instructions given in the cause, that the main issue and question in the cause was, whether the said application of said sums arising from the sale of the property, under said executions, was with the knowledge and consent of said Lonergan, or was the individual and personal act of said Wiseman, as deputy sheriff, and without the direction, assent and knowledge of his principal, Lonergan, sheriff as aforesaid. On this branch of the case, the jury, in the instruction given in behalf of plaintiff, were told, among other things, that if Wiseman, whilst acting in the capacity of such deputy sheriff, created the liability which led to said judgment (in favor of Brockway), by his own negligent and illegal acts, without the direction, consent, or approval of the sheriff, Lonergan, then there was no right to contribution, and the finding must be for the defendant. The same rule was announced in the instruction given in defendant’s behalf, and at his instance, as follows : ‘‘If the jury believe, from the evidence in the case, that P. C. Wiseman, as deputy sheriff, sold the property at sheriff’s sale, which has been shown by the evidence to have been seized under attachment in favor of A. W. and Gf. W. Brockway, and against J. D. Harrison & Co., and without the direction, assent, or knowledge of his principal, P. F. Lonergan, applied the proceeds of said sale, or surrendered said property, for the payment of other claims against J. D. Harrison & Co., which were under the control of D. P. Dyer, to one James E. Carstarphen, then if the jury should so find the facts to be, the plaintiff cannot recover, and the verdict should be for the defendant.” These instructions very fully and fairly submit the substantial and meritorious defence made in the answer, [323] and upon this issue the evidence is manifestly and plainly conflicting. As to this question of the wrongful distribution of the money, upon the returns of said execution, and whether the same was without the knowledge, consent, or direction of Lonergan, the following extracts, in substance, from the testimony will be sufficient to show that the verdict is supported .by the evidence. Wiseman, for example, testifies that a few days after the sale, he told Lonergan what he had done, and showed the statement made out by Carstarphen at the time of the sale; that Lonergan folded the same up and put it in his pocket; that afterwards, when he came to make his returns on said executions, he asked Lonergan what return he should make as he did not collect the money, and that Lonergan told him to go to Dyer, who would make up his return for him. Dyer testifies that after the sale he met Lonergan and talked with him about the sale, proceeds, etc., and what he proposed to do, and that Lonergan told him to see Wiseman and have the endorsements made on the executions, and that he went to Wiseman and made and entered the receipt and endorsement previously referred to in said orders of sale. Lonergan testified among other things, in substance, that Wiseman told him, a few days after the sale, what he had done in regard to the sale and the proceeds ; that he had taken Carstarphen’s receipt, which Wiseman, he thinks, showed him at the time, and in his cross-examination he says, with some qualification, but in effect and substance, that he thinks Wiseman showed him the said statement taken from Carstarphen, which he thinks he read, and that he may have said it was all right. The testimony of both Wiseman and Carstarphen, also tends to show, that said Wiseman insisted on having the money, but finally waived, at least for the time being, payment of the same, upon the representations that the [324] arrangement would be satisfactory to said Lonergan, and that it ought, therefore, to satisfy him. So far as this distribution of said proceeds is concerned, said sheriff, as the evidence indicates, relied upon Dyer, rather than on his deputy, Wiseman. Said Lonergan was aware, as he testifies, of the pendency in said court of said suit on the part of said Brockways against said Harrison & Company, and that the other creditors in the attachment suits were contesting the same. The evidence was, we think, before the jury under proper instructions. As to the objection to the use of the words, “direction, consent, or approval,” in said first instruction for plaintiff, it is sufficient to say that the same or equivalent expressions are used in said instruction given for defendant and at his instance. A further exception was taken to the reception in evidence of the proceedings of the Louisiana court of common pleas, appointing plaintiff receiver for said bank, but as the objection and exception was general, and not specifically stated, it was properly disregarded by the court. Primm v. Raboteau, 56 Mo. 412; Margrave v. Aussmuss, 51 Mo. 561. Generally, the regularity of the appointment of the receiver cannot be questioned in collateral proceedings, but the remedy, in that behalf, is by motion to vacate the order. High on Receivers, secs. 203, 238. Finding no error in the record calling for our interference, we affirm the judgment, and it is so ordered. All concur.