Brechtel v. Cortright

Opinion by

Beaver, J.,

The defendant, the sheriff of Wayne county, levied upon certain personal property of the husband of the plaintiff. The husband died. Letters of administration were duly issued to the plaintiff and she, as widow, elected to retain a portion of the property levied upon, of which election the sheriff had notice before the sale. The appraisement was made upon the day of the sale. Subsequently, upon exceptions filed to the widow’s appraisement, the same were referred to an auditor who, after due notice, dismissed the exceptions and the appraisement was finally confirmed by the court, April 14, 1898, to which confirmation there were no exceptions and from which there was no appeal.

1. Upon this state of facts it is difficult to understand the materiality of the defendant’s first point, the refusal to answer which constitutes the first assignment of error. The court did not refuse the point but declined to answer it, inasmuch as it was involved in the general legal question which was reserved. It is true there was no contradiction of the evidence in regard to the ownership of the property when the levy was made and there was no allegation, on the part of the plaintiff, that in making such a levy the sheriff was a trespasser, but the point was wholly immaterial. The real question involved was the trespass of the sheriff in making the sale after notice of the election of the widow to retain the personal property sold.

2. To the writs in the sheriff’s hands he returned that “I did, on the 26th of June, 1897, sell defendant’s personal property to various persons for the sum of 1495.40.” This return, being specific and not uncertain, was conclusive and it was not competent for the sheriff to contradict it. This has been so long and so well settled that the authorities need not be cited. The answer to the defendant’s second point and the portion of the charge relating to the same subject, as set forth in the second .and fifth assignments of error, are, therefore, not erroneous.

3. After the sale, the sheriff delivered to the purchasers of the property claimed by the widow, inter alia, the key of a lock which he had put upon the cellar where the property was kept. The purchasers, as they testified, assumed control of it and continued to do so, until they removed it. There was practically, therefore, no contradiction as to facts which the court held constituted a delivery' We can see no error in the various rulings of the court below iipon this question. The third, sixth, fourteenth and fifteenth assignments of error are overruled.

4. The appraisers were competent witnesses to prove the amount and value of the property taken by the widow under her election to retain $300 in personal property. They showed sufficient knowledge to testify intelligently upon the subject and the evidence was properly admitted. The instruction of the court to the jury in regard to the measure of damages was entirely proper and indeed the only instruction which could have been properly given on that subject. The seventh, eighth, tenth, eleventh and twelfth assignments of error are also overruled.

5. The title of the plaintiff was determined by the judgment of a court of competent jurisdiction, of which the defendant had due legal notice. He was, therefore, bound by the finding of the auditor, dismissing the exceptions to the widow’s appraisement and the confirmation thereof by the court. He could not collaterally attack her title. No competent evidence was offered or received which tended in any way to overturn her title or deprive her of the property itself. The fourth, ninth, sixteenth and seventeenth assignments are likewise dismissed.

6. The court reserved the question whether or not, under all the evidence in the case, the plaintiff was entitled to recover and subsequently entered judgment upon the verdict. After an examination of the whole record and a careful reading of all the testimony, we are convinced that in doing so the defendant was in no way injured. The plaintiff had a clear right, under the evidence, to recover, and the judgment entered upon the verdict which was for less than the plaintiff’s claim would seem to show that the jury had discriminatingly discharged their duty.

Judgment affirmed.