Knox v. Webster , 18 Wis. 406 ( 1864 )

By the Court,

DixoN, C. J.

“ Personal property shall be bound from the time of its seizure on execution.” R. S., ch. 134, see. 18. Before seizure there is no lien — nothing by which the rights of different execution creditors, whether senior or junior, can attach. The lien takes effect from the date of the levy and by virtue thereof, and of course is confined to the execution levied, and can have relation to no other. Such lien is prior and superior to that of every execution subsequently levied, and consequently not liable to be defeated by such subsequent levy, though made upon a senior execution. This point, if not decided, was strongly intimated in Russell v. Lawton, 14 Wis., 209. It follows that the court was right in rejecting the record and proceedings upon the motion to have the money made on Cooper’s execution applied on that of the plaintiff. The court had no power to make such application, and was bound to deny the motion. The plaintiff having wholly mistaken his remedy, the decision upon the motion was no bar to this suit, and that was the only purpose for which the record and proceedings were offered.

As to the duty of the sheriff in making the levy, we are satisfied be should have levied the senior execution first. The decision in Russell v. Lawton proceeded on this supposition in all cases where the several executions are in the hands of the same officer. The statute, sec. 15, requires the sheriff, under the sanction of his official oath, to indorse upon every execution the year, month, day and hour of the day when he received the same. No reason is perceived for this, unless it be to furnish unequivocal and satisfactory evidence upon which to determine disputed questions of priority and preference among different execution creditors of the same debtor, and to enable the sheriff to guard against mistakes. He is a public officer, of whom the law requires the strictest impartiality between those who are obliged to have his services, and this impartiality cannot be enforced except upon the rule that he must, at his peril, levy and satisfy executions according to their seniority in his hands. Once allow it to be a race of diligence between the different creditors in finding and pointing out the property of the debtor, and what a door to partiality, fraud and strife would be opened ! The sheriff might neglect inquiry, or be wilfully ignorant, for the sake of favoring one or oppressing another creditor, and the whole controversy would be thrown upon the uncertain testimony of interested and suspicious witnesses. We do not doubt, therefore, that it was the intention of the legislature, as it is the course of reason, that executions should be levied according to seniority, and that the sheriff in this case was not justified in levying the junior execution first because the creditor in that execution had been more successful than himself in finding the property of the execution debtor.

The question of deducting the sheriff’s fees from the value of the property as found by the court, was not made at the trial, and is not presented by the exceptions. The exception to the third conclusion of law is too general for this purpose. Where an instruction or conclusion of law is in general correct, but subject, perhaps, to modification in some particular or par-tieulars, not materially affecting its general correctness, tbe exception should be particular, so as to call tbe attention of tbe court to tbe precise point of objection. Pilling v. Otis, 14 Wis., 495; Lachner v. Salomon, 9 Wis., 129.

Judgment affirmed.