Huish v. Fenkell , 85 Utah 253 ( 1934 )

I dissent. The respondent, Huish, brought an action May 27, 1931, on a promissory note for $300 against the defendants Paul D. and Ida Fenkell, husband and wife. At the same time he caused a writ of attachment to issue and put in the hands of the sheriff, which on the same day was served, and, in pursuance thereof, an automobile "belonging to the defendants," so recited by the sheriff's return to the writ, was seized and taken into his possession and custody. On June 6th the Commercial Credit Company, claiming to be the legal owner of the automobile by reason of a title retaining note, and Beatrice Mack claiming to be the equitable owner, served written notice on the sheriff demanding that the automobile be released and the possession thereof returned to the defendant Ida Fenkell. The demand was refused.

Thereupon the defendants Fenkells, June 25, to obtain a release of the automobile from the attachment, executed and delivered the redelivery bond or undertaking set forth in the prevailing opinion. On June 29, on service of motion for a release or discharge of the attachment, both parties appearing by counsel, the court, after reciting that the redelivery bond had been given and the sureties approved by him, directed and ordered that the attachment be discharged "and the said car (the automobile) redelivered to the defendants," and that, by reason of the facts and of the redelivery bond as by the statute required, "it is hereby, by the court, ordered and decreed that the attachment by which the car hereinbefore mentioned and described was taken into custody and possession by the sheriff of Juab County be, and the same is hereby, discharged, and the said sheriff, D.J. Sullivan, is hereby ordered forthwith and without delay to deliver said car back to the garage of the defendants from whence it was taken by him under said attachment," and that the delivery be made without further costs to the defendants. A copy of the order was served on the sheriff. On July 21, 1931, he made return to the order as follows:

"Return. "D.J. Sullivan hereby certifies:

"That as ordered by the court heretofore on June 30, 1931, he ordered Carson's Garage to release to defendants the said car or automobile described in said order.

"That heretofore, and prior to the receipt of the foregoing order the Commercial Credit Company took into its possession said car according to information received from Carson's Garage.

"Said Commercial Credit Company claims a title prior to defendants, and has repossessed said automobile according to the best information and belief of D.J. Sullivan.

"All charges of Carson's Garage have heretofore been paid, according to the best information and belief of D.J. Sullivan.

"Dated July 21, 1931.

"[Signed] D.J. Sullivan, "Sheriff, Juab County, Utah."

The return was filed in the clerk's office July 22, 1931, and thus became a part of the court records of the cause. What the court thus ordered the sheriff to do was, forthwith and without delay, to return the automobile to the defendants Paul and Ida Fenkell, at their garage, where it was taken by the sheriff on the writ of attachment. By the statute, R.S. Utah 1933, 104-18-21, it is provided that, when attached property is released by the giving of a redelivery bond or undertaking approved by the court, the property so released "must be delivered to the defendant." That is what the court directed the sheriff to do. But the sheriff's official return shows he did not do so. By the redelivery bond, the order of the court discharging the attachment and directing the sheriff to deliver the automobile back to the defendants, and by the record, it indisputably is shown that the sheriff had taken possession of the automobile and held it under the writ of attachment. If he had not so seized and held the automobile, the giving of the undertaking to release the attachment, the court approving the undertaking and ordering the property released from the attachment and delivered back to the defendants, was a mere idle ceremony. The return so made by the sheriff in pursuance of the order shows that, instead of complying with the order as he was directed to do, he certified that prior to the receipt of the order he was informed that the Commercial Credit Company had taken possession of the automobile; that the company claimed "title prior to the defendants and had repossessed said automobile," according to the information and belief of the sheriff. How or in what manner or by what process the company took the automobile from the custody of the sheriff, or by what means the company got or acquired possession of the automobile, was not by the return explained. The effect of the sheriff's return is that no redelivery of the automobile was made by him, either to the defendants or to the Commercial Credit Company, or that he delivered the automobile to the Commercial Credit Company at the request or order of the defendants or either of them.

There, so far as any further return of the sheriff in such particular, the matter stood until after judgment in the action against the Fenkells on the promissory note and in which action the writ was issued and the automobile seized. Such judgment was recovered by the plaintiff against the Fenkells in the sum of $376 and costs, December 24, 1931, and upon which execution was issued and returned unsatisfied. On January 7, 1932, notice of the judgment, the issuance and return of the execution unsatisfied, the failure of the defendants Fenkell to pay the judgment or return the automobile, was served on the sureties of the undertaking and demand made on them to "deliver the automobile to the sheriff," and, upon their failure so to do, to pay the judgment including costs. The judgment not having been paid and the automobile not delivered to the sheriff, this action was commenced against the Fenkells and the sureties on the redelivery bond or undertaking. The complaint was sworn to January 21 and was filed January 25, 1932. At the same time the sheriff, January 20, signed, and on January 25 filed, what is termed, "Sheriff's Return on Attachment, Execution, Demand under Redelivery Bond," etc. The so-called return consists of closely typewritten lines on two full pages of typewriting of more than fifteen folios of one hundred words each. Such return was not designated as and does not purport to be any amendment to any return theretofore made and filed by the sheriff, nor was it made or filed by leave of court. It apparently was made and filed contemporaneously with the commencement of this action and in aid thereof, and so that the recitals therein contained might be used as record evidence of facts therein recited, without resort to other evidence, and so was used by the plaintiff and regarded by the trial court.

I readily concede that recitals of official returns made by an officer as to service of process, etc., required by law to be made, and of official returns required to be made to orders of courts, are at least prima facie evidence of facts so properly recited; and as stated in 6 C.J. 261, that:

"The return to a writ of attachment is competent evidence to prove the fact and manner of the levy and the nature of the property taken thereunder, and is at least prima facie evidence of the facts recited therein."

But the so-called return filed on the same day this action was commenced, and in aid thereof, is a misnomer. The mere naming or calling it a "return" means nothing. It in some particulars constitutes mere narrative recitals or a history of returns theretofore made, in some an enlargement of them, and in many other particulars of recitals not required nor pertinent to be made. It contains a history or recitals of twelve enumerated propositions, including the issuing of the writ of attachment, service of the writ, taking possession of the automobile in pursuance of the writ, the release of the attachment in pursuance of the redelivery bond and order of the court, what the sheriff did or failed to do in pursuance thereof, a copy of the redelivery bond, the rendition of the judgment against the Fenkells, the service of an execution upon them and returned unsatisfied (all memorials of court records), notice to the sureties that the judgment had not been paid and demand made on them that the automobile be returned to the sheriff or that they pay the judgment, and the failure of the sureties to deliver up the automobile or pay the judgment (matters dehors any official return). In other words, the so-called return consists of recitals or a history of about all of the proceedings in the cause from the issuance of the writ of attachment to and including the commencement of this action. In such so-called return, it is recited that the sheriff received the writ of attachment, made a return thereof on May 27, 1931, that he served it on the defendants Fenkell on the same day and in pursuance thereof seized and took into his possession the automobile, describing it, which, as recited, belonged to the defendants, and kept and retained it, until January 29, 1931, when the redelivery bond was given and the order of the court made discharging the automobile from the attachment. Such recital is but a history of the prior return made by the sheriff to the writ of attachment, and which by the statute, R.S. Utah 1933, 104-18-7, he was required to make "within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto." What the sheriff in such respect recited in such prior official return, let it be conceded, except in some particulars, is prima facie evidence of the facts so recited. What the sheriff six or nine months thereafter by the so-called return recited on the eve of this lawsuit is but a mere narration or history of the memorials as shown by the original official return, and, hence, is not in such respect prima facie evidence of anything. In the so-called return filed at the same time the action was commenced, the sheriff further recited that, "when the court in the above entitled cause made and entered its order authorizing the acceptance by him of a redelivery bond tendered by defendants, and discharging the attachment (the court accepted and approved the undertaking and discharged or released the attachment), theretofore placed against said automobile in consideration of said bond, that I thereupon released said automobile from said attachment (the court did that), and shortly thereafter delivered said automobile to defendants, to wit, by delivering at defendants' request and order said automobile to Commercial Credit Company of Salt Lake City." It then is further recited that such company claimed "title by a retaining note made, executed and delivered by defendants theretofore to said corporation, as shown on the records of the Secretary of State of Utah," and that such order and note gave the Commercial Credit Company all the legal title and right of possession to the automobile, subject only to plaintiff's attachment rights, then and there belonging to defendants; and that the Commercial Credit Company then and there demanded the automobile "from me and pursuant to the court's order, and pursuant to the defendants' written order and note, I therefore delivered to said corporation (the Commercial Credit Company) said automobile, which said corporation had all rights of possession to said automobile belonging to defendants." It is difficult to understand how such latter recitals no matter how returned, much less by a spurious return, may be considered as prima facie evidence as they were of the facts so recited or as of any evidenciary value.

What order was made by the court approving the redelivery bond, discharging or releasing the attachment, and directing a redelivery of the property by the sheriff, is to be shown by memorials of records of the court and not by narrative recitals by the sheriff. What, in pursuance of the order, was done by the sheriff is to be shown by the return and certificate indorsed thereon or attached thereto and filed by him as heretofore shown and referred to, and not by his mere narrative recitals made and filed six or nine months thereafter on the eve of the commencement of this action. As is seen by such prior official return filed by the sheriff, he certified, not that he in pursuance of the order delivered the automobile to the defendants, or to any one at their request, or on their order, or that he at the request or order of the defendants delivered it to the Commercial Credit Company, but that, "prior to the receipt of the foregoing order, the Commercial Credit Company took into its possession said car,' according to information received by the sheriff, and that the company claimed title thereto "prior to the defendants," according to the information and belief of the sheriff.

Now, six or nine months thereafter, and without leave of court, the sheriff filed his so-called return wherein it is recited, on the court's order authorizing him to accept the redelivery bond and discharging the attachment, "that I thereupon released said automobile from said attachment and shortly thereafter delivered said automobile to the defendants, to wit, by delivering at defendants' request and order said automobile to the Commercial Credit Company," which company, as he recited, had title thereto prior to the defendants by reason of a title retaining note. Such recitals that the sheriff delivered the automobile to the defendants by delivering it to the Commercial Credit Company at the request and order of the defendants is inconsistent with the prior and official return filed in the cause and certified to by him. But whether regarded as being so inconsistent or not, the official return theretofore made and filed by the sheriff of what was done by him in pursuance of the court's order, until amended by leave of court, is the proper memorial thereof, and not what the sheriff may, six or more months thereafter and after judgment in that cause, file and certify to without leave of court.

I thus under the stated circumstances cannot yield assent to a holding that such mere narrative recitals of records and proceedings of the so-called return, filed at the commencement of this action and by reference made a part of the complaint and by the court "adopted as a part of the complaint," and considered as evidence of facts therein recited, may so be considered, either as prima facie evidence or as having any evidenciary value. I concede that, upon a proper showing made, the court, in its discretion, may grant leave to amend a return made by an officer in his official capacity. But no such application was made or leave had. Without such leave of court, an officer has no authority to amend a return which has been filed by him and which has become a part of the record, except perhaps as to mere clerical errors not involving substance. In 6 C.J. 257 it is said:

"The return to a writ of attachment as well as the inventory, may be amended so as to show the real facts. But while it has been held that an officer has an absolute right to amend his return to conform to the facts, at any time before the cause is submitted to the jury, the better rule seems to be that he can amend without leave of the court only before the return becomes a part of the record, and after that time leave of court must be obtained."

Says Drake on Attachment (6th Ed.) 194, 195, that:

"When an attachment has been returned, the return is beyond the reach of the officer and of the court into which it is made, unless a proper case be presented for the court to grant leave to amend it. * * * As a general proposition every court may allow amendments of returns upon its process. All applications for the exercise of this power are addressed to the sound legal discretion of the court, to be determined by the nature and effect of the proposed amendment. * * * An officer cannot as matter of right amend a return he has once duly made. This would be to place at his discretion the verity and consistency of records, and the effect and authority of the most solemn judgments. But until the process is actually deposited in the clerk's office, the return does not become matter of record, even though the officer keep the process in his possession long after the time when it should be returned; and until the return is actually made, the process is under his control and in his power and he does not need the authority of the court to amend it."

Here the sheriff, by his prior official return filed by him, certified what he did in pursuance of the order of the court with respect to releasing the attached property and a redelivery thereof in the cause in which the attachment was procured and the property seized and taken into possession by the sheriff. It was not until after that cause had gone to judgment, and the complaint filed in this action, that the sheriff, without leave of court, filed the so-called return thereby in effect attempting to amend his prior official return theretofore filed, and ingrafted something on it not contained therein.

The facts as recited in the so-called return, and made a part of the complaint as to a redelivery of the automobile after the redelivery bond, were by the answer of the defendants denied, and the contrary alleged that the sheriff failed, neglected, and refused to redeliver the automobile to the defendants or to either of them. No evidence of any such redelivery as stated in the so-called return was given other than as shown by such return itself filed at the commencement of this action. Evidence was given on behalf of the defendants, that the automobile was not returned to either of the defendants or to any one for them. That was not disputed by any evidence in the case except by the so-called spurious return.

In view of all this, how stands the case? As is seen by the statute, R.S. Utah 1933, 104-18-21, it is expressly provided that, upon the giving of an undertaking approved by the court and an order made releasing the attached property from the operation of the attachment, the property "must be delivered to the defendant." Upon such an application made and the giving of a redelivery bond approved by the court, the court ordered the automobile released from the attachment and in accordance with the statute ordered and directed the sheriff to deliver the automobile to the defendants. By the original and official return filed by the sheriff and by the undisputed evidence, it is shown that such redelivery was not made. Among the contentions of the defendants, the chief contention is that, because such redelivery was not made, the redelivery bond or undertaking did not become operative, and hence the sureties were not liable thereon. By the great weight of authority, under a statute such as we have requiring a redelivery of attached property to the defendant upon the giving of an undertaking approved by the court and on a release of the attachment, and as was here ordered by the court, I think the contention is sound and should prevail. In 6 C.J. 339 the author says:

"Where the defendant in attachment executes and delivers to the attaching officer a bond in conformity to the statute for the release of the property or the discharge of the attachment, he becomes entitled to the possession of the attached property, and it becomes the duty of the attaching officer to deliver such property to him."

In 4 Cyc. 689 it is said that:

"When a bond in conformity with the statute is executed by a defendant it is the duty of the officer levying the attachment to deliver to the former the property so levied upon, and it is held that the bond is inoperative and that no liability attaches to the sureties unless the property is redelivered into the hands of the defendant or his agent."

The proposition is well put by the court in the case ofDrovers' Live Stock Commission Co. v. Custer County State Banket al., 19 Okla. 302, 91 P. 850, 851:

"We are clearly of the opinion that the petition fails to state a cause of action. The purpose for executing a bond like the one in suit is to secure the return of the property attached, and there is no allegation in the petition to the effect that after the Custer County State Bank executed the bond in question the attached property was returned to it. Such an allegation was indispensable, and the fact that the court, after the bond was approved, ordered the attached property to be released, and the plaintiff attached a copy of such order to his petition, is not sufficient. The burden is on the pleader to show that the attached property actually was returned."

In the case of McGonigle v. Gordon, 11 Kan. 167, it was held that:

"In an action an undertaking given by the defendant in an attachment case, to secure the release of the attached property, it is necessary to aver and show by the evidence that the attached property was restored to the defendant, or there can be no recovery on the undertaking."

To that effect also are the cases of Eddy v. Moore,23 Kan. 113; Kohn Co. v. Hinshaw, 17 Or. 308, 20 P. 629; andCortelyou v. Maben, 40 Neb. 512, 59 N.W. 94. In some jurisdictions it has been held that the mere release of the attached property suffices. But the requirement of our statute is that the attached property when released on the giving of a redelivery bond "must be delivered to the defendant." Such a requirement to render the undertaking operative is mandatory. To hold otherwise renders the giving of a redelivery bond or undertaking futile.

I thus am of the opinion that the judgment of the court below should be reversed, and the case remanded for a new trial.