Barr & Daugherty v. Boyles ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court, November 15th 1880.

This was an action of trespass for seizing and carrying away the machinery and fixtures of an oil well. They were on land leased for a term of years, with a right in the tenant to remove them therefrom. At a previous time they had been unquestionably owned by one Floyd. The plaintiffs in error were constables. They sought to justify the taking under and by virtue of executions against Floyd, to them severally directed. The defendant in error claimed to have purchased the property of Floyd, and to have taken possession thereof prior to any levy thereon. The validity, as against Flood’s creditors, of this alleged sale was denied, and presented the main contention in the case.

The executions directed to Barr, and the records of the judgments on which they issued, were given in evidence. Under the several offers covered by the first, second and third assignments, the plaintiffs in error offered in evidence the execution directed to Daugherty, to be followed by proof that H. R.. Fullerton, by whom it purported to be signed, was a justice of the peace in and for the county of Armstrong, having ,his office at Parker City therein, and as such justice and at his office he issued the execution under his seal and delivered the same to Daugherty as constable ; that as such constable he levied on, duly advertised and sold as the property of said Floyd some of the articles in question. The execution was in due form. It recited that a judgment had been obtained before said justice by Thomas Phillips & Co. against W. P. Floyd, for the sum of $45, together with $7.20 costs, which judgment remained unsatisfied, and commanded him, said Daugherty, to levy the said debt, and interest thereon, together with costs, on the goods and chattels of the said debtor, and to expose the same to sale, &c. The evidence was objected to, and rejected by the court by reason of the judgment recited in the execution not being shown.

In a suit against the plaintiffs in the executions for seizing and selling the property, they must show the judgments on which the executions issued to justify the taking. The rule is held differently when the suit is against a sheriff or constable who are ministerial officers.

When an execution regular in form and nothing on its face indicates want of jurisdiction in the justice is directed to the constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands. He is not required to examine the record to ascertain whether the justice had jurisdiction, and whether the proceedings are all regular. The apparent regularity and presumed jurisdiction, as evidenced by the execution, not only protect him in its due execution, but make it his duty to proceed to execute the writ. Among the numerous decisions recognising this principle may be cited Kerlin et al. v. Heacock, 3 Binn. 215; Paul v. Vankirk et al., 6 Id. 123; Allison v. Rheam, 3 S. & R. 139; Kingsbury v. Ledyard, 2 W. & S. 37; Moore v. Allegheny City, 6 Harris 55; Billings et al. v. May, 11 Id. 23; Cunningham v. Mitchell, 17 P. F. Smith 78; Fall Creek Coal and Iron Co. v. Smith, 21 Id. 230. Also, Savacool v. Boughton, 5 Wend. 170; Beach v. Furman, 9 Johns. 330; Holden v. Eaton, 8 Pick. 437. It follows that the offer of evidence covered by the third assignment, in connection with those covered by the first and second, was improperly rejected.

Under the evidence admitted, no error is discovered in the fifth, ninth and tenth assignments. The remaining assignments relate to the sale and delivery of possession to the defendant in error. As a whole the charge contains a fair exposition of the law. Qualified and explained as the answers to the points are by the general charge, we see no sufficient cause therein for reversal. The substantial error consists in the rejection of evidence, and for this Judgment reversed, and a venire facias de novo awarded.