Bernheim Bros. & Uri v. W. H. Andrews & Bro. ( 1887 )

Campbell, J.,

delivered the opinion of the court.

The appellees had no right to contest the claim of the appellants to a judgment against Howell for the debt he owed them, and as an incident to such judgment to a special execution as provided for by the Act approved March 11, 1884, entitled “An Act to amend § 1255, Revised Code of 1880, etc.,” Acts of 1884, p. 84.

As the appellees had a judgment against Howell, and by virtue of an execution on it the property had been seized by a constable for its satisfaction, it was not admissible for another constable, by virtue of the process in his hands, to take it out of the hands of the officer who had taken possession of it; but the appellees acquiescing in the surrender by the officer who had levied their execution to the officer having the writ of seizure, appeared before the justice of the peace who issued the writ of seizure, and contested with the plaintiffs in that suit their demand against Howell, and having failed to defeat them there, appealed to the Circuit Court, where, on issue joined, they obtained a judgment dismissing the claim of the appellants, awarding the property to the officer who had levied the execution on it, and taxing the appellants with the costs.

The extent of the right of the appellees to appear in the court which issued the writ of seizure, was to claim the money produced by the special execution ordered. They could not be heard to object to a judgment in the case between others, and a special execution followed the judgment, if the case was made out by the plaintiffs against the defendant. The signal for their interposition was when harm was threatened to them. They had the property seized under their execution, and could have held it. The officer permitted it to be taken from him by the officer with the writ of seizure, and the plaintiffs in that execution came into the court to which it was returnable and disputed the right of the plaintiffs to a special execution, when their only right there was to claim the money made by such execution, since they permitted it to be kept by the officer who seized it under the special writ. If they desired to dispute the right of the officer with the writ of seizure to take the property from the officer who had levied their execution on it, their course was not to contest the right of the plaintiffs to a special execution, but to question the right of the officer to execute the writ of seizure by interfering with the previous levy of the execution. Submitting to the unauthorized invasion of their rights by the seizure of the property under the writ of seizure, they should have waited until the special execution, to which the plaintiffs were entitled, had made the money, and claimed that. Thus the rights of all would have been conserved. The plaintiffs would have had judgment and special execution, to which they were entitled, against Howell, and the fruits of it, as far as necessary, would have been made available to the demand of the plaintiffs in the execution which had been levied on the property, if their claim was paramount to that of the plaintiffs in the writ of seizure.

The appeal from the judgment of the justice of the peace should have been dismissed. The parties appealing had no standing in the controversy between the parties to that suit. They had no right to object to a special execution. It could not harm them. The writ of seizure had caused the property to be taken from the officer who held it under execution, and the special execution was the process for its sale.

The court ruled erroneously on the question whether an exemptionist residing in a city, town, or village, in his selection of personal property not to exceed in value two hundred and fifty dollars, may take a barrel of whiskey of less value. The range of selection within the limits prescribed as to value is unlimited. It is for the exemptionist to select for himself, according to his judgment, taste, or fancy, and no court can abridge this right which the law has given to him.

The judgment of the Circuit Court is reversed, and the appeal from the judgment of the justice of the peace dismissed, and all costs in. this court and the Circuit Court will he taxed against W. H. Andrews <f> Bro., the appellees herein.