Dornin v. McCandless , 146 Pa. 344 ( 1892 )

Opinion,

Mr. Chief Justice Paxson :

The plaintiff issued a testatum fieri facias out of the Court of Common Pleas of Westmoreland county, directed to the defendant as sheriff of Allegheny county, and instructed him to levy upon certain personal property alleged by the plaintiff to belong to Carson, the defendant in the execution. The sheriff levied upon the property referred to, but subsequently becoming satisfied that Carson was not the owner, he abandoned the levy and returned his vrat nulla bona. It does not appear that he claimed to be indemnified, nor that indemnity was tendered him. This suit was brought to recover damages for not proceeding to sell the property levied upon.

Upon the trial in the court .below, the defendant offered to prove by Mrs. Agnes Jane Carson, the witness on the stand, that she was the wife of Robert Carson, the defendant in the execution upon which the levy had been made by the sheriff; that, in the year 1882, a decree was made entitling her to the benefits of the act of April 3, 1872, P. L. 35, entitled “ An Act entitling married wo'men to the benefit of their separate earnings; ” and that the horses, wagon, and household furniture, levied on by the sheriff in this case, were her separate property, bought and paid for with her money. This offer was rejected by the court, and forms the. subject of the first specification of error.

The defendant was sued for making a false return. The offer was to prove that his return was true; that the defendant in the execution had no goods upon which he could levy, and that the property which was pointed out to the sheriff as the property of said defendant was in fact the property of some one else. It would certainly be a severe rule to hold that when a sheriff is sued for making a false return he could not show that his return was true. This is precisely what we are asked to do in this case. The learned judge based his ruling upon Miller v. Commonwealth, 5 Pa. 294. It is true, there was an offer to prove in that case that the goods levied upon did not belong to the defendant in the execution, which offer was rejected by the court below and affirmed here. But in that case the sheriff had returned a levy, and the rejected offer was simply to contradict his own return. After having returned to the court that he had “ levied on a horse, wagon, sleigh, and clock,” the property of the defendant in the execution, he certainly had no right to show that said property belonged to some one else. His mouth was closed by his official return. As was said by Justice Coulter, in that case: “ Thus, when he returns, goods levied, with a schedule, he assumes the responsibility that they belong to the defendant; and he will afterwards, as a general rule, be estonped from denying that they were such.” Where the sheriff returns a levy upon personal property, it is a satisfaction of the judgment pro tanto, and there is every reason, in good sense and public policy, why he should not be allowed to contradict his return. In the case in hand, there was no return of a levy; the return was, as before stated, nulla bona; and the single question is whether he can show that his return was true.

It was contended, however, that the sheriff was fixed because he had made an actual levy. It was true that certain goods had been pointed out to him as the property of the defendant in the execution, and#he had levied upon them. But was this an official declaration on his part that they did belong to the defendant? At that time he had no personal knowledge in regard to the ownership, except the plaintiff’s statement. If that statement was not true, if the property did not belong to the defendant, if the plaintiff had deceived him in this regard, was he bound to go on and sell, or return a levy, when he knew the property belonged to some other person ? Where the sheriff hás a reasonable doubt, and the property is claimed by' a third person, he may demand indemnity, and if it is refused, he may decline to levy and sell and apply to the court for relief: Spangler v. Commonwealth, 16 S. & R. 68. And the inter-pleader act provides a remedy by which the sheriff may be protected in cases of doubt. But where he is in no doubt; where he knows the property pointed out belongs to a stranger, is he bound upon the penalty of his official bond to proceed ? It is true, if he does not, he takes the risk; that is, he acts as a judge in his. own case. Yet, does he incur any further penalty than to be mulcted in damages in case it turns out that he was mistaken ? May he not show, in support of his return of nulla bona, that in point of fact the defendant in the execution had no goods upon which he could levy ?

The proposition that a sheriff is bound to violate the law, and commit a trespass by levying upon property which he knows to belong to A, upon an execution against B, has no support in reason or authority. This very point was made in Commonwealth v. Watmough, 6 Wh. 117. .There, the court below was asked to instruct the jury that, as the plaintiffs had offered to indemnify the sheriff, he was bound to proceed, whether the defendant in the execution was the owner or not. This the court refused, and this court, through Justice Kennedy, sustained the refusal in a very emphatic manner. It was said by that learned justice, at page 140 :

“ It would certainly have been a most palpable error in the court, if it had affirmed the proposition advanced by the plaintiffs’ counsel on this point. It would, in effect, have been declaring that it was the duty of the sheriff to do' an illegal act, because the plaintiffs had offered to indemnify him if he did so; for surely it cannot be seriously alleged that it would not be an illegal act and a most glaring violation of law, in- a sheriff to seize and sell, knowingly, the property of a stranger or third person, under an execution, who was nowise liable for the payment of the debt or money thereby directed to be levied......

The sheriff, it is true, is bound to take property, when pointed out to him by the plaintiff in the execution as belonging to the defendant, if it be his in fact, though it may be doubtful at the time whether it is so or not, if the plaintiff offers to indemnify him. And if he should refuse in such case, after an indemnity offered, to proceed against the property under an execution, and the plaintiff, in a suit brought against the sheriff for not having so proceeded, should show clearly that the defendant in the execution was the owner of it at the time, the plaintiff would be entitled to recover; but not otherwise. So that the sheriff, if he refuses to take and sell the property, after being offered an indemnity by the plaintiff, takes the risk and responsibility upon himself of showing, if sued afterwards by the plaintiff, that the property did not belong to the defendant named in the execution; and this is the most that can be claimed of him.”

I have quoted from this opinion at some length, for the reason that we believe it embodies the true rule upon this subject. The criticism that it applies to a case of stocks is without merit. The decision is placed upon a broad ground that applies equally to other species of property. The doctrine of that case is fully affirmed in Commonwealth v. Vandyke, 57 Pa. 34, where it was held that in an action for a false return of nulla bona, unless that it appears that the property pointed out belonged to the defendant in the execution, an offer to indemnify the sheriff will not make him liable. The true rule to be deduced from the authorities is this: that when the sheriff returns an execution nulla bona, he does so at his own risk, and if it is shown that there is property of the defendant which he might and ought to have levied upon, he will be responsible. It is competent, however, for him to show that the property pointed out to him was the property of a stranger. In other words, he may show his return to be true, for, if true, the plaintiff in the execution has sustained no injury.

The judgment is reversed, and a venire facias de novo awarded.