Davis v. Netterville ( 1890 )

Woods, C. J.,

delivered the opinion of the court.

Netterville, who was the plaintiff in execution in the trial below, caused to be levied an execution upon certain live stock as the property of Hugh L. Davis. The appellant made claimant’s affidavit and bond, and took charge of the property. Subsequently, and before the return of the writ into court, additional levies were made on other property to the full amount named in the execution. On the trial of the claimant’s issue, this writ, with the sheriff’s returns, was offered in evidence by plantiff in execution, and was admitted over the objection of appellant, and this action of the court is assigned for error.

The ground of appellant’s contention is, that, inasmuch as § 1774, code of 1880, makes it the duty of the officer holding an execution, after affidavit and bond made by a claimant, to return such affidavit and bond with the execution, and as § 1775 declares further proceedings on such execution shall be stayed for an amount equal to the value of the property so claimed, as indorsed and returned by the officer, until the final decision of such claim ; therefore the subsequent levies, in this case, without any stay of execution to the amount of the value of the property taken by the claimant, should be held to be an abandonment of the first levy on the property embraced in the pending proceeding.

The vice of the officer’s proceedings in making the levies consisted in making the second and third levies for an amount greater than the statute authorized. The irregularity, was in the subsequent levies; not in the first. The complaint lies properly to the action of the officer in making the later levies and not to the first. Whether these later levies were invalid, or whether they were mere irregularities which may be corrected on application to the court out of which the process issued, it is unnecessary for us to determine.

The right to make additional levies is not disputed by counsel, and, as the levy evidenced by the return which was admitted is unassailable, standing alone, we must hold that the subsequent irregularity in making the additional levies cannot be considered an abandonment of the original levy. Whatever the effect of the levy for an amount greater than that contemplated by the statutes cited on these additional levies, we must hold the original levy is in no way affected thereby, and hence, that the action of the court was not erroneous.

The several other questions presented need not be considered by us, in view of the undisputed fact that the deed to the live stock, though executed before the officer’s levy, was recorded afterwards. It nowhere appears that this deed was filed for record before the day on which it was actually recorded. Under § 1178, code 1880, making a conveyance from a husband to his wife valid when such conveyance is in writing and acknowleged and filed for record, it is declared that third persons are to be affected only by the filing of the conveyance for record. Before the conveyance from Hugh L. Davis to his wife had been recorded, and, so far as the record before us discloses, before the conveyance had been filed for record [for in the absence of any proof offered by claimant on this point, we cannot assume that it had been filed at an earlier day] the execution had been levied and the rights of third persons had intervened.

At the date of the levy upon the property involved in this suit, it is manifest that the claimant had no conveyance which she could assert or maintain against the appellee. This being determined, the other questions argued by counsel become immaterial. Montgomery v. Scott, 61 Miss. p. 409.

Affirmed.