Evans v. Virgin

Cassoday, J. If, upon the trial of an issue of traverse of an attachment, the court finds for the defendant, then the statute requires that the defendant’s costs of such trial be taxed, and an order “ entered that the property attached be forthwith delivered up to the defendant.” Sec. 2746, R. S. In this case the trial court found for the plaintiff on the trial of the issue of traverse; but, on the filing of the remittitur on. the reversal of that part of the order entered thereon relating to the firm property, that court did tax the costs of the defendants upon such trial, and entered an order, in legal effect, that the firm property so attached be forthwith delivered up to the defendants. This was in pursuance of numerous cases in this court. Morawitz v. Wolf, 70 Wis. 516; Clark v. Lamoreux, 70 Wis. 512; Braunsdorf v. Fellner, 69 Wis. 335; Keith v. Armstrong, 65 Wis. 227. The authority of these several decisions, however, does not extend beyond the points decided in each, and the facts upon which such decision was based. “ It is a general rule,” said Marshall, C. J., “ that the positive authority of a decision is co-extensive only with the facts on which it is made.” Ogden v. Saunders, 12 Wheat. 333. True, in the case first cited Mr. Justice LyoN said: “The statute is imperative and contains no exception whatever. The order must be entered in every case pursuant to its requirements, or it is error. It is quite immaterial that the circumstances of the case may be such that the order, when entered, will be inoperative.” But neither in that case, nor in any of the other cases above cited, was the property or the proceeds thereof, in the hands of such attaching officer, taken or ap [428] plied by bim upon an intervening valid process against the property of the same defendants, as in this case. As said upon the former appeal, “the affidavit stated a good ground for attachment against the property of the firm, and was therefore a protection to the officer.” 69 Wis. 158. The property, being perishable, was, under the order of the court, properly converted into money, which was held by the sheriff in lieu of the property attached. The proceeds of such property, consisting of money in the hands of the attaching officer at the time when the execution was received by him, were rightfully levied upon, and paid over and returned as so much money collected, without exposing the same for sale as provided in sec. 2987, R. S., unless the sheriff was precluded from making such levy by reason of the money being in his own hands. Courts have so held, even in the absence of such statute. Freeman on Executions, sec. 111; Herman on Executions, sec. 124. Mr. Freeman considers the preponderance of the cases in this country as holding that money in the hands of a sheriff or constable, belonging to the defendant, being the surplus or residue remaining in possession of the officer after he has satisfied the writ, is not in the custody of the law, and therefore is subject to execution. He says: “The execution having been fully satisfied, the officer ceases to hold the money by virtue of the writ. As to the ascertained surplus, he is said to be liable to the defendant as for money had and received. Such surplus can therefore, while in the officer’s hands, be reached by the defendant’s creditors.” Freeman on Executions, sec. 130, p. 179, and cases there cited. The same author says: “But the officer who has levied upon property may hold the same to answer for subsequent writs which come into his hands while the first levy remains in force. The mere receipt of the subsequent writ operates as a constructive levy upon all the property act [429] ually or constructively in bis possession under a prior writ.” Id. sec. 135. To the same effect is Herman on Executions, sec. 174, p. 249. Of course, the same rule is applicable to successive attachments. Halpin v. Hall, 42 Wis. 176; 1 Am. & Eng. Ency. Law, p. 927, subd. 10. “Subsequent valid levies necessarily exclude those prior in point of time but wanting in compliance with the law in essential particulars.” 1 Wade, Attachm. sec. 219; 1 Am. & Eng. Ency. Law, 927; Robinson v. Ensign, 6 Gray, 300; Culver v. Rumsey, 6 Bradw. 598. So here we must hold that, upon the dissolution of the attachment, the money realized thereon, and in the hands of the sheriff, is not to be regarded in the cus-todj?- of the law in such a sense as to preclude the sheriff from applying it upon the execution against the property of the same defendants, issued to and received by the same officer after the receipt of such money. Freeman on Executions, sec. 135; Sherry v. Schuyler, 2 Hill, 204; Van Winkle v. Udall, 1 Hill, 559; Gilman v. Williams, 7 Wis. 329; Woodmansee v. Rodgers, 59 How. Pr. 402. It is claimed, however, that in any event the defendants Avere entitled to enough of said money to satisfy the costs and damages awarded to them upon such dissolution of the attachment, instead of applying such costs and damages, as a setoff, upon the unpaid balance of the plaintiff’s judgment. But such setoff was so allowed in strict obedience to the statute. Whether the' trial of such traverse is before or after the trial of the principal action, the statute requires that the amount of such damages and costs upon such dissolution shall be applied “ as a setoff to the plaintiff’s demand as established upon the trial” of the principal action, when not in excess of it. Sec. 2746, R. S.; Henderson, v. Allen, 56 Wis. 177. •By the Court.— The order of the circuit court is affirmed.