Hamilton v. Ward , 4 Tex. 178 ( 1849 )

WHEELER, J.

This proceeding was instituted under the act of 1812. (G Stat., 07, sees. 10 and 23.) The 10th section of the act provides: “That, should any sheriff or other officer fail or refuse to pay over money collected under an execution, when demanded by the person entitled to receive the same, lie shall be liable to pay ten per cent, per month on the amount so colleded, besides interest and costs; which may he recovered of him and his sureties by motion before the court from which such execution issued.”

By the 23d section it is enacted : “-That if any sheriff or other officer shall fail to make return of any execution received by him on the day and at the place the same shall be made returnable, * * * lie shall be liable to pay to the plaintiff in execution the full amount of tiie debt, interest and costs, to be recovered against such sheriff or other officer and his sureties by motion in any court having jurisdiction thereof by giving three days’ notice of such mot ion.”

These statutes, authorizing summary proceedings and being in some degree penal in their character, are'to he construed strictly in favor of the party to be affected by them. (1 McMull. XL, 179.) And if is undoubtedly true that, every fact necessary to a recovery must appear upon the record. (4 Yerg. R., 161; 3 Humph. R., 85.). But the, facts need not, necessarily be recited in the judgment; and in our practice, it lias never been required to set out in the judgment itself tiie facts upon which it, is fomided. It is sufficient if thej' be stated in tiie petition and ascertained by the judgment. The motion in this case takes tho place of the petition. It. contains an averment of every fact essential toa recovery w ith the same certainty and specialty which are reqnired in a petition, and seems in this respect sufficient. The judgment raises a legal presumption of the truth of every material averment in the petition or motion, which can only be. rebutted by a statement of facts showing the absence of proof.

Tin; petition and answer are in our practice as much a part of the record as the judgment itself, and it is only by a comparison with the former that the correctness of the latter can be ascertained. This is in conformity with the practice in the. courts of chancery generally in tlie United States, as it is stated by Mr. Justice. Story in his Equity Pleadings', (Story’s Eq. Pl., 407,) and as ic was also stated by him in pronouncing the opinion of the Supreme Court in the case of Whiting v. The Bank of the United States, (13 Pet. R., 13, 14:) “In England (tlie court said) tlie decree always recites the substance of tlie hill and answer and pleadings, and also the facts on which the court founds its decree. But in America the. decree does not ordinarily recite either the hill or answer or pleadings, and generally not the facts on'which the decree is founded. But with hs the, bill, answer, and other pleadings, together with the decree, constitute wliat is properly considered as the record.”

Such, it is conceived, is tlie case in our practice, and without any distinction between eases at law and in equity.

It cannot, therefore, bo a valid objection to the judgment that it does not recite the facts alleged in the motion and proved at the trial, of the receipt by the sheriff of tlie execution, the receipt of tlie money, and the demand.

The objection to tlie notice is not, it is conceived, well founded. The sheriff acknowledged service of the motion more than three days before the trial; and he appeared and made his defense to the merits, and tints waived all objection to the sufficiency of the notice. (1 Ala. R., 543; 3 id., 164.)

In support, of the objection that the plaini iff did not show a judgment, reference is made by counsel for tlie plain!iff in error to the cause of Jones v. Pope, (1 Saund. R., 37,) and The State v. Sadler, (1 Eng. Ark., R.. 235.) The former was an action for an escape; tlie latter an action against a sheriff gild his sureties upon his official bond; and the reasons upon which those decisions were, based are not, it is conceived, equally applicable to a case, like tlie present. In this case (lie proceedings are conducted in.the same court from which the execution issued. There is nothing in the form of the proceedings to prevent the defendant, from showing that there is no judgment, or if it he superseded or reversed, from showing these facts in his defense. And in Alabama, in a proceeding under a statute similar to onrs, and whore proceedings of this character liavb been held to as much strictness as perhaps in any State in which they have been authorized by law, it has been expressly decided that, to support a summary proceeding against a sheriff for failing to return an execution, tlie plaintiff need not produce tlie judgment, but the sheriff may show in defense that there is no judgment, or that it is void. (4 Ala., 516; 9 Id., 931.)

IVo do not think it material to the rights of the defendant in this proceeding that the plaintiff should have produced the judgment, and are of opinion that its production was not essential to bis right to recover. But can tlie sheriff ho held liable in his official character for money received after the return day of tlie execution? This question was considered by the Supreme Court of Alabama in the ease of Tlie Bank v, Reid, (3 Ala. R.. N. S., 299,) in a summary proceeding against a sheriff and his surety for tlie failure of .the sheriff to pay over money collected on an execution. The statute of Alabama made it the duty of the sheriff to return the execution to tlie clerk’s office from which it issued at least three days previous to the term of the court t.o which it was returnable. The money was received by tlx; sheriff on the first day of the return term. The court reviewed and followed its former decisions on the subject, and held that the payment of tlie amount of tlie execution to the sheriff ou the first day of the term to which it was returnable, ¿Aere being no levy.previously, could not be regarded as a satisfaction of the execution, and that the plaintiff's remedy was against the sheriff by action for money liad and received, or against the original defendant by issuing an alias execution.

The same question was considered by the Court of Appeals of Kentucky in tiie case of Ferguson v. Johnson, (¡5 Litt. It., 19.) The court held it perfectly clear that a sheriff can have no authority, in virtue of execution, to receive .money after tiie return day of the execution, and that lie cannot be held liable in his official character for money so received. The court' proceed to say that where the sheriff, before tiie return day, levies on property, lie may no'doubt sell the property afterward*, upon the ground that the authority to levy upon and sell property is entire, and lie who begins its execution may finish it. But this principle is inapplicable to the present case.

It seems clear, therefore, upon authority, that the sheriff cannot lie held liable in this proceeding for having failed to pay over, on demand, the money received by him after tiie return day of the execution, when its legal vitality was lost and it had bemma fundus officio. The act of receiving the money in such a case is not an official act for which lie and his sureties can be held liable in a summary proceeding as for an act done by him in his official character.

That the money in the present instance was received by the sheriff after the return day of the execution cannot now bo questioned by tiie defendant in error. The only evidence upon which he relics to cl large the sheriff with its receipt is the return upon (he execution. This was given in evidence by himself. And though he might have shown it to be false, (3 Pike It., 212,) not having done so, and having relied'on it to make out his case, he cannot now be permitted to question its truth. •

Having arrived at (lie conclusion that the judgment cannot be maintained upon the ground of the failure of the sheriff to pay over the money, the judgment must be reversed. But in order to a final disposition of tiie cáse in the court below, it becomes material to inquire whether it was the right of (be plaintiff to have proceeded against the sheriff' upon both grounds embraced in his motion, and whether the court erred in refusing to permit him so to proceed; and if so, finally, whether the sheriff could legally apply the money received for the plaintiff to the execution which had come into his hands Inst him, and thus relieve himself from liability for his failure to return tne execution.

Upon the first branch of this inquiry, tiie right of the plaintiff to proceed at the same time and in the same, motion for both defalcations of the sheriff, we have bad-some difficulty in arriving at a satisfactory conclusion. The case of Hill v. The Bank (5 Port. R., 537) may appear to support the ruling of the court below requiriug the plaintiff to elect upon which ground embraced in his motion he would rely. But in that case tire proceeding was upon different and dissimilar statutes, and the case was in other respects unlike the present. If the reasoning of the court in that case were more satisfactory than it is, we could not regard that as a precedent for the. present case. Did the grounds embraced in the motion constitute each in itself a separate and independent cause of action, there could be no difficulty in tile question; for though different and distinct, yet not being inconsistent causes of action, there can he no doubt that they might he joined. (Carter et al. v. Wallace, 2 Tex. R., 206.) But though the grounds of the complaint be distinct, and the plaintiff might doubtless proceed upon either at his election, they do not so properly constitute separate causes of action, as separate remedies for enforcing substantially the same, cause of action. Did they constitute separate causes of action, it would seem to follow that, the plaintiff might recover upon both. But we think it clear that, whatever may be the number of derelictions of duty by the sheriff, the plaintiff can have but one recovery under the statute, and that a recovery, with satisfaction, upon either ground, will amount to an entire and final satisfaction as respects the plaintiff’s rights in the summary proceeding given by the statute. The primary object of the act doubtless was to give compensation to the party for the injury occasioned by a dereliction of duty by the sheriff. It was intended to be sufficiently penal to insure a faithful discharge of official duty; but it could not have been intended to give the plaintiff more than one compensation for the injury sustained by him, the failure to obtain his money, consequent upon the default of the sheriff. The debt is of course the gist of the entire action. (Sedgw. on Meas. Dam., 530.)

But though the acts complained of do not properly constitute separate and independent causes of action, yet each in itself affords the ground of a distinct ' remedy to enforce substantially the same right. The plaintiff might have proceeded upon either ground. And if it was intended to afford concurrent and not merely alternative remedies, lie might, on general principles, have proceeded at the same time upon each ground by separate motions; and if so, we .see no good reason why he might not, and indeed ought not, to join them as lie did to avoid a needless multiplicity of suits.

' The question, Ihen, resolves itself into this : Are the remedies given by the -statute concurrent or only alternative remedies? If the latter, whatever may be the number of derelictions of duty by (he sheriff', the party injured must elect to proceed for one only, and should lie fail in that, will be remediless; for having made his election he must, be bound by it. If the remedies bo alter- ' native oiily, it is perfectly clear that the consequence of a mistake in the selection of the remedy must prove fatal. But we see nothing in the language of -the statute or in principle which requires this construction. On the contrary, it would, we think, tend to defeat the very object which the Legislature liad in view: that, of giving summary redress to tire injured party, without a resort (o the forms and delays of an ordinary action. The form of the remedy and the mode of procedure is in each case the same; and we see no reason -why (lie remedies may not be regarded as.concurrent and be joined in the same motion.

The plaintiff cannot, it is true, have but one satisfaction. But lie may and 'ought, we think, to proceed at once upon every ground of action on which lie intends to rely. Ihxd lie been permitted lodoso in the present case, upon proof of the first ground embraced in his motion, the failure to return the execution, lie would have been entitled to a judgment for the amount of his debt, interest and costs; upon proof of the second ground or both, lie would have been entitled, in addition, to damages upon this amount at ten per cent, per month for (lie time during which 'his móney was wrongfully withheld from him.

We are of opinion, therefore, that the court erred in not permitting the plaintiff'to proceed upon both grounds embraced in his motion. And hence it 'becomes material to determine whether the case ought to be remanded to enable the plaintiff' to proceed against the sheriff for his failure to return the execution; and this depends upon t.lie question whether, by applying the .amount, collected for the plaintiff to the execution which lie held against him, the sheriff is discharged from liability in this proceeding for not having returned the execution ; Unit is, had lie the right thus to apply the money received by him for the plaintiff?

In support of his right thus to appropriate Hie money, we have been referred, -on behalf of the plaintiff in error, to the decision of the Supreme Court of Tennessee, in Hie case of Dolby v. Mullens. (3 Humph. It., 437,) upon the precise question here, presented. The facts of the case were briefly these: Mullens, the sheriff, had two executions'in his hands at the same time; one in favor of Dolby against Waite, for §61, and the other in favor of Waite against Dolby, for 61-15. The sheriff collected the sum of §61 due Dolby and appropriated it in satisfaction of Waite’s execution, and returned the facts. Dolby moved against the sheriff for failing to return with a sufficient response the execution; but the court held that the appropriation of the money by the sheriff was an authorized and legal act, and the return valid. The question was upon the sufficiency of the return; and in pronouncing the opinion of the court Judge Green held the following language :

“It is objected that this return is insufficient, 1st, because money cannot be levied upon by fierif '.tcias; 2d. because, if it be subject to execution in the hands of the defendant, it cannot be taken by the officer until it has been paid to the person entitled to receive it.

“1. As to the first question, whether the sheriff can lake money iu execution, there can be no doubt. The reason given in some of the old cases, ‘that money could not be sold,’ is conclusively answered by Chief Justice Marshall in the case of Turner v. i'endall, (1 Cr. R., 118,) where lie says: ‘The reason, of a sale is tliat money only will satisfy the execution, and if anything else be taken, it must be turned into money; but surely that the means' of converting the thing into money need not be used, can be no adequate reason for refusing to take, the very article to produce which is the sole object of the execution. He also quotes, in support of the position that money may be levied on, Dalton’s Sheriff, 145, and 2 Show. R., 166. But the reasoning is so conclusive that authorities are not necessary to support a proposition winch upon principle is so clear.

“2. But as to the second question, whether money in the hands of the sheriff can be levied on and applied by him to an execution in his hands against the owner of the money, we do not think the reasoning of the court, iu the same case of Turner v. Hondal!, by any means satisfactory. It is there held that such application cannot be made.' 'The reason given is that the plaintiff in the execution is not the legal owner of the money in the officer’s hands; that his claim upon the officer is only for a certain sum of money, but that he is not entitled to the specific pieces that constitute that sum. With deference to the judgment of this distinguished tribunal, and especially to the exalted genius and clear discriminating judgment of the great man who penned the opinion, we are unable to perceive any reason why the money which an officer collects by virtue of a fieri facias does not belong to the plaintiff in the execution.

“The judgment pronounces that he shall recover the particular sum of the defendant, and the execution commands the officer to make that sum, and the money so made to have at the next court to render to the plaintiff.

“Tile money so made and received by the sheriff belongs to some one, and the question is, to whom does it belong? Certainly not to the sheriff until lie converts it. It must, then, belong to the plaintiff. The fact that lie cannot maintain detinue, hut must bring debt for it, does not prove that It is not his property, hut proves only that it is incapable of being identified, and therefore that a form of action that would require such identification cannot he maintained. The difficulty is one of evidence, not of title. The same difficulty would exist if money b" placed in the bauds of a bailee to keep for the owner. It could not be recovered in detinue for the same reason. Yet who will say that if I deposit a dollar in the. hands of another, it ceases to be my money the moment I part with the possession ? And yet the principle is the same.

“In 1st Dnnford and Hast, 370, Judge Bnller decides tliat money in the hands of a trustee does not give the possessor, before a conversion, such property iu it as to render it liable to his debts. Now certainly the property is in the possessor or in the cexhti que Irust. But if it be in the cexhti que, lrust, it proves that money may he the property of one man and be in the hands of another. Indeed, were the proposition not denied by such high authority, it would seem too plain for argument.

“Apiece of money m’ay be marked so as to be easily distinguished from all other pieces. If this get, into the hands of a person not the'owner, detinue may be maintained to recover it. But has the owner any better title-to it than he lias to a piece not marked? Surely not; the only difference is as to tlie means of proof.”

Noth 7Ú. — Mitchell v. Rankle, 2ií T. Snpp., Vi2. A previous demand is noeossary; filo motion cannot he made by a stranger to the execution, to whom tlie judgment is assigned. (Beave v. Battle, 19 T., 111; Walton v. Compton, 28 T., 669; Lyeudecker v. Martin, 38 T., 287; De La Garza v. Couth, 20 T. 478.)

The learned judge proceeds to review and answer tlie argument of tlie court in Turner c. Feudal], in support of tlie proposition that money in the bauds of the sheriff cannot be levied oil and applied by him to an execution in his hands against tlie owner of tlie money, in every aspect in which that argument has presented tlie question, with equal clearness of discrimination and force of reasoning, and concludes that “tlie whole difficulty is the result of the mistaken assumption that because detinue will not lie for money, therefore it cannot belong- to a party who has it not in possession.”

The weight of authority upon this question does seem opposed to the proposition maintained by the Supremo Court, of Tennessee in this ease. But the reasoning of the learned judge from whose opinion I have quoted so freely seems t.o support that proposition with almost tlie precision, accuracy, and con-elusiveness of actual demonstration; and when maintained by tlie unanimous judgment of .that learned tribunal of which lie is a distinguished member, we feel no hesitancy in adopting it as our judgment in tlie present case. Tlie reasonableness and justice of sueli a doctrine were acknowledged hi the case of Turner v. Fendall, and cannot, we think, be doubted.

We conclude, therefore, that the sheriff had the right to appropriate the money of the plaintiff in his bauds in satisfaction of tlie execution against the plaintiff, in favor of Latimer, Bagby & Co. This having been done, and tlie plaintiff having received full satisfaction of his execution before the institution of this proceeding, it follows that lie can have no right to maintain this action to enforce the penalty against the sheriff for having failed to return tlie execution. That would be in effect to permit a party to recover a second time for substantially tlie same cause; to obtain a second satisfaction of the same indebtedness.

At tin» lime when this proceeding was commenced the plaintiff had no cause of complaint. lie liad received his money, or, what is equivalent, it had been appropriated to tlie satisfaction of an execution against him. Surely bo can have sustained no injury by tlie payment of his debt; nor can lie have a right to speculate upon tlie "derelictions of tlie sheriff when bis own just demands have been fully satisfied.

In ordinary'actions against a sheriff, in this class of eases tlie settled general rule (says Sir. Sedgwick) is that the measure of damages, independent of statutes, is'tiie actual'injury sustained; tin's actual injiiiy being measured b3 the amount, of tlie original debt due tlie pi lini iff, and which has been lost or prejudiced by the neglect of tlie officer, unless it is made to appear that the debt could never have been collected, and that consequently tlie plaintiff lias lost nothing. (Sedg. on Meas. Lain., 530.) And on general principles (lie says) it would seem that if it affirmatively aplicar that tlie plaintiff lias sustained no damage, tlie officer guilty of a technical violation of duty will still be liable for nominal damages. (Id., 532.) But this (he adds) does not seem absolutely certain, (1b. and notes.)

Whatever maybe the. rule in ail ordinary action, we have no hesitancy in holding that this principle is inapplicable in a summary proceeding under a penal statute, where it. is not embraced within the provision of tlie statute.

Hail tliis proceeding been commenced at the return term, or before tlie application of the money by the sheriff in satisfaction of the second execution, it would liave presented’a different question. But not having been commenced mil il there had been full satisfaction of tlie execution, it cannot be maintained. There is therefore no occasion to remand tlie case for further proceedings below.

Reversed and dismissed.

Note 76.—Haley v. Greenwood, 2S T., 680; Thomas v. Browder, 33 T., 783. Note 77.—Waltcon v. Compton, 28 T., 569. Note 78.—Spinks v. Caldwell, 23 T., 623. Note 70.—Underwood v. Russell, ante, 175: Smith v. Perry, 18 T., 510: De La Garza v. Booth, 28 T., 478.