Hamner v. Ballantyne

Zane, C. J.: This is an appeal by the defendant from a judgment against him, in favor of the plaintiff, for the sum of $208.50 and for costs, and from an order refusing a .motion for a new trial. With other facts, the plaintiff alleged, in his complaint, that he was the owner of .$242.85, and that the defendant carried it away, and unlawfully converted it to his own use, to plaintiff’s dam.age in the sum of $242.85, with interest. To this complaint the defendant filed an answer, in which he justified ,. such taking and conversion under an execution, which he made a part thereof. The execution recites a judgment .against the defendants, John Hamner and others, and appears to be fair on its face. The defendant stated further, in his answer, that, in obedience to the execution,., he demanded the amount due thereon, and that plaintiff paid to him the $242.85 in satisfaction thereof, .and that he returned said sum, with the execution and his return thereon, to the clerk’s office. The execution and return thereon established the above facts, with the additional one that the $242.85, less the costs, were paid to Hamner’s attorney. On the trial of the cause the defendant offered the exe [329] cution with the return thereon in evidence, and, the court having sustained the plaintiff’s objection to its admission, defendant excepted, and assigns such refusal as error. This assignment of error raises the question, was the execution admissible in evidence, with,out the judgment upon which it issued? The writ required the officer to demand of the defendants the sum mentioned in it, and, upon refusal to pay, to levy upon and sell enough of their unexempted personal property to satisfy the same, and, if enough could not be found, to levy upon and sell enough unexempted real property. In demanding and receiving the money due on the execution, and crediting the same, the officer beyond the commands of the writ, and he was protected by the writ in so doing. An officer with an execution in his hands is not authorized to demand payment from a person not a party to it, or to levy'on'the property of any other person. If he levies on property in the possession of a person, -not a party who claims a right to it, he must produce the judgment with the execution under a plea of justification; because possession is prima facie evidence of ownership. The officer is apprised, by the possession and the claim, that the person making it has the prima facie- right according to Ms claim. However,we do not wish to be understood as holdingthat an officer would be justified in executing a writ against a person named in it as a defendant who was not a party to the judgment upon which it issued, or in executing a writ issued on a void judgment, after learning that such person was not a party to the judgment or that is was void or that there was no judgment. With such knowledge, we are of the opinion that the officer should not execute the writ. Grace v. Mitchell, 31 Wis. 533; Sprague v. Burchard, 1 Wis. 457; McDonald v. Wilkie, 13 Ill. 22; Leachman v. Dougherty, 81. Ill. 325. There is a conflict in the authorities, however, as to this [330] rule, but we think it sustained by authority and better reasoning. Freem. Ex’ns (2d Ed.), § 102. But we cannot apply this rule to this case, because knowledge that the plaintiff was not a party to the judgment upon which the execution issued is not sufficiently shown by the evidence in the record. Notice of any irregularity or fraud in obtaining the judgment, or in the judgment itself, that simply renders it voidable, but not void, will not justify the officer in refusing to execute the writ, or render its execution by him wrongful, or make him liable for its execution. In that case, the judgment would be effectual until set aside, and such action must be left to the party whose rights are invaded. The plaintiff claims that the issue tried in the court below between defendant and himself was simply a right to property; that the officer was not proceeded against as a tort feasor. When the proceeding is one in rem, as in the case of an action of replevin, the better rule is that the officer, in justifying, must show a valid judgment as the foundation of the action, although the writ may be fair on its face, and he has no information that it has been issued on a judgment void for want of jurisdiction of the subject-matter or of the person, or without any judgment upon which to base it. If an officer in good faith executes a writ, fair on its face, the writ protects him, though there was no judgment upon which to base it. Such a writ can only be used as a weapon of defense, and for protection, — not for the purpose of attack for offensive purposes. An officer, who in good faith seizes or sells property under an execution, may justify, in a suit for damages against him in consequence of such seizure or sale, without producing the judgment; and he will be regarded as having acted in good faith, when the writ was fair on its face, and he was not advised that there was no judgment, or [331] that, if there was, it was void. And it will make no difference whether the suit is for damages on an implied contract or upon a tort. A ministerial officer cannot be held personally liable in any proceeding, civil or criminal, for any act done by him in executing a writ fair on its face, unless he knows, or should have known, as a reasonable man, that the judgment upon which it purported to have been issued was void, or that there was no judgment. In the trial of the title or right to property in the officer’s hands under the writ, he must, however, produce the judgment, though the writ is fair upon its face, and he has no knowledge that the judgment is void, or that there is none. Such a proceeding is against the property, or to recover it, and not to subject the officer to responsibility for his acts in obedience to the mandate of the court. Beach v. Botsford, 1 Doug. (Mich.) 199; Gidday v. Witherspoon, 35 Mich. 368; Cobbey, Repl. §§ 806, 807; Cooley, Torts (2d Ed. 542; Leroy v. Last Saginaw City Ry. Co., 18 Mich. 234; Adams v. Hubbard, 30 Mich. 104. The plaintiff alleged, in his complaint, that the defendant took $242.85 of his money and unlawfully converted it to his own use. The'plaintiff was a party defendant to the execution under which the officer, who is the defendant in this case, took the money; and the writ purported to be on. a judgment against the plaintiff in this case, and was fair on its face; and*the evidence does not show that the defendant knew that the judgment was void or that no judgment had been rendered against the plaintiff; and this case was not instituted to recover the specific money taken by the officer. It was brought to recover damages for the unlawful conversion of the money by the officer to his own use. If the plaintiff had waived the tort alleged, and sued for money had and received by the officer to plaintiff’s use, [332] it would not have been an action to try the title or right to the money merely. The effect of a judgment against the officer in that case would have made Mm personally responsible for acts performed, in good faith, on an execution against a defendant to it; but, as we have seen, the execution protected the officer for such acts, under such circumstances. While the former distinctions between civil actions in this State have been abolished, they will be regarded still as founded upon contract or tort from the facts alleged in the complaint. Actions in this State are classified with respect to the facts alleged. From the facts alleged, this action must be regarded as in trover. While in some cases the person whose property has been unlawfully converted into money or money’s worth may waive the tort, and base his action on an implied contract for money had and received, the plaintiff' based this one on the wrongful conversion of his money by the defendant. The action is not for the identical money which he alleges was converted, but he claims damages for the wrongful conversion of his money. The execution, being fair on its face, justified the conversion as the- return shows it was made. The action could not be regarded as one to try the right to the money taken that had been paid to defendant’s attorney before the suit was brought. It was for damages resulting to plaintiff, as claimed, from the wrongful and unlawful conversion of his own money by the defendant. In sustaining plaintiff’s objection to the execution offered in evidence by the defendant, we are disposed to think that the court below erred. The judgment and order appealed from are reversed, and the court below is directed to grant a new trial. Bartch, J., concurs.