Meincke v. Bracksieck

Lewis, P. J., delivered the opinion of the court. The plaintiff sues by attachment on a promissory note for $300, given to him by the defendant in purchase of a pair of mules, a spring wagon, and some other articles of little value. The defendant answers, denying all the allegations in the petition except as to the giving of the note, and sets up, by way of counter-claim, that “on the 16th day of August, 1881, the sheriff.of the city took from the possession of the defendant and delivered into the hands of the plaintiff, two brown mare mules and one two-horse covered wagon. That since the said dates, and up to the date of the filing hereof, the plaintiff has continuously ha'd in his possession, and using and enjoying the benefit of said animals and wagon, and is liable in law to defendant for the use thereof.” The matter thus set up does not constitute a counter-claim, within the terms of the statute. Rev. Stats., sect. 3522. It is not stated [316] as “ arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” It is not stated that the mules and wagon are the same which were sold by the plaintiff to the defendant, and attached in this proceeding. If they were the same, however, the defendant would have no cause of action against the plaintiff, since the property was in the lawful custody of the sheriff, and the defendant, having no right of user for the time being, could claim nothing for its use by another. The plaintiff may have been an agent of the sheriff for the care of the property. But, whether he was so or not, his responsibility was to the officer only. It is not alleged that, there was any damage or injury done to the property. If the claim be treated as an independent cause of action arising on contract, then it is no counter-claim under the statute, because it was not “ existing at the commencement, of the action.” The petition was filed on August 15, 1881. The court below rightly disregarded the supposed counterclaim, and gave judgment for the plaintiff for the amount, due on the note, with an order for special execution against the property attached. Counsel for the defendant seems disposed to regard this special order as an enforcement of the vendor’s lien, and argues hence that the court erred in making a general order covering the property in a lump instead of a specific order as to each separate.article, with the purchase price thereof. If this were a case of vendor’s lien, the law would not be as plaintiff claims. The property was purchased in a lump, at a lumping price for all, and no value was separately set on any article. But there is no vendor’s lien in the case. Revised Statutes, section 2353, to which reference is made, simply intends that personal property, which would otherwise be exempt from sale under execution, shall not be so exempt, if the judgment be “against the purchaser for the purchase price thereof.” The practical effect may or may [317] not be similar to that of a vendor’s lien, according to circumstances. The special order, in this case, was made under the statute regulating proceedings in attachment. Rev. Stats., sects. 433, 435. We find no error in the record and the judgment is affirmed. All the judges concur.