State ex rel. North v. Hadlock , 52 Mo. App. 297 ( 1893 )

GriLL, J.

— Relator North brought suit against defendant Hadlock (sheriff of Polk county) and the sureties on Ms official bond, for damages alleged to-have been sustained by reason of the wrongful seizure and sale of a certain lot of railroad ties belonging to the plaintiff, and which had been levied on by said sheriff in an action to which said relator was not a party.

The answer consisted of two counts; the first being a general denial, and the second as follows: After admitting that at the date of the alleged seizure Had-lock was sheriff, “defendants say that said Hadlock, as such sheriff, received from the clerk of the circuit court of Cedar county, Missouri, a duly certified copy of an order of sale, commanding him to sell the ties mentioned in plaintiff’s petition, the same then being in the lawful custody of said circuit court of Cedar county, Missouri, and that by virtue of such order of sale he did on the first day of June, 1888, sell said ties-as he was in duty bound to do.”

To this last count plaintiff demurred, on the ground that it stated no defense. The demurrer was overruled, and, in the absence of a reply, the court entered judgment for defendants, as appears by the following judgment: “Now come the parties hereto-by their respective attorneys, and this cause coming on for trial before the court upon the pleadings herein,, and the plaintiff offering to prove the allegations of his petition, and the defendant having filed his answer, setting up new matter in justification, which is unreplied to, and the plaintiff having filed a demurrer to said portion of the answer, which demurrer is by the court overruled, and the plaintiff declining to plead further in this case, the court finds for the defendant upon the pleadings. It is, therefore, considered by the court,” etc. From this judgment plaintiff appealed.

The action of the lower court — both in overruling the demurrer, and in giving judgment for defendants on the face of the pleadings — was clearly erroneous. The theory adopted by the trial court amounts to this: If the sheriff on an attachment writ against A should seize the property of B, and if the court where the cause is pending shall order a sale of the property as perishable, then the execution of said order will deprive the true owner of his right of action against the sheriff for such wrongful levy. There is no rule of law that will justify this proposition.

While it is true the courts hold, where attached property is sold under an order of court, because of its perishable nature, that the purchaser takes a title good against the world (Young v. Kellar, 94 Mo. 581; Butter v. Woods, 43 Mo. App. 494), yet no case has gone so far as to say that such a sale of the attached property would take away the rights of a third party to sue the sheriff in trespass for having wrongfully levied on and sold his goods to satisfy the debt of another. It does not follow because a purchaser of the attached goods (sold under order of court because likely to perish during the- litigation) gets a perfect title that, therefore, the property belonged to the attachment debtor. The title in that'state of case is made to pass >ex necessitate rei, and as a proceeding in rem. The true rule is thus declared in a Pennsylvania case, cited with approval in Young v. Kellar, supra: “Where cattle belonging to one person had been seized under attachment as the property of another person, sold on mesne process as perishable property, and the real owner brought trespass against the sheriff, it was held that he could maintain the action; that the proceeding by attachmnnt was not a proceeding in rem, and did not bind the plaintiff, but that the - proceeding which resulted in the sale of the attached property pendente lite was a proceeding in rem, which conferred a valid title on the purchaser, ■though, the sheriff could not shelter himself behind the valid title there acquired.”'

The judgment, therefore, of the circuit court must he reversed and the cause remanded.

All concur.