Black Hills Brewing Co. v. Middle West Fire Insurance

140 N.W. 687, 31 S.D. 318, 1913 S.D. LEXIS 121

• Court: South Dakota Supreme Court
• Decided: March 31, 1913
• Status: Published

Opinion

WHITING, P. J.

One Giljevich was the owner of a house and contents, situated in Lawrence county and insured in the Middle West Fire Insurance Company, defendant and appellant herein. The insured property was destroyed by fire during the lifetime of the policy, and an action was thereafter brought by Giljevich against the insurance company to recover upon such policy. Giljevich .and wife were indebted to the Black Hills Brewing Company, plaintiff and respondent herein, and, such indebtedness remaining unpaid, the said brewing company brought an action and recovered a judgment in the circuit court of Lawrence county against said Giljevich and wife upon-’ the 18th day of February, A. D. 1911, at which time the action brought by'Giljevich against the insurance company was still pending. The brewing company took out execution upon its judgment, and .claims to have levied the same upon'the property of said Giljevich, including, among other property, the claim held bv Giljevich, under such policy, against the insurance company. CÍaiming to be the owners of the right of action or claim under such policy, under and by virtue of an execution sale had upon such execution issued upon its judgment against Giljevich and wife, the brewing company brought, this action against the insurance company to recover the amount of the loss which,it is claimed, was covered by ■the policy of insurance. This action was brought on for trial on February 28, 1912, and upon said day verdict was returned therein in favor of the plaintiff. Judgment was entered upon said verdict, and it is from such judgment that this appeal is taken.

The assignments of error preserved by the record herein present several questions; but we find it unnecessary, and believe it will serve no useful purpose, for us to consider any assignments other than those questioning plaintiff’s title to said chose in action and saving objections to the evidence offered in support of such title. Upon the opening of the trial of this cause, as appears by the stenographer’s transcript forming a part of the record herein, the following proceedings appear to have taken place: “Moved by plaintiff that, in the case of Black Hills Brewing Company, a corporation, Plaintiff, v. John Giljevich and Katie Giljevich, Defendants, that the sheriff’s return upon execution issued in said cause should be amended to read as follows and have incorporated therein -the following words: ‘That the claim for loss by fire held by the defendant herein against the Middle West Fire Insurance Company in the amount of $800, upon which suit is now pending in said court in Lawrence county,’ which motion is annexed hercio and made a part of this' transcript, to the allowance of which said motion defendant objects.” The underscoring is ours: It is perfectly clear that the underscored words; which appear interlined in the settled record, could.not.have been used by counsel in making his motion, as no. transcript was then in existence. We are at a loss to know what is intended by these words, unless they refer to an “Order to Show Cause,” which had been issued in the case wherein execution had been returned, which order, to show cause afterwards, during the proceedings upon the trial of this case, appears to have, in some manner, become a part of the record herein. Following the above motion are specific objections interposed by the defendant. Defendant objected, upon the ground that the allowance of said motion was incompetent, irrelevant, and immaterial; that its allowance in an action in which this defendant was not a party would be prejudicial to the rights of. defendant; that no notice of the amendment had been given or served upon the defendant .Giljevich; that no- notice of such levy was in fact served upon the defendant herein to-wit, the insurance company. The transcript herein shows that these objections were overruled, exception taken and allowed. There is no record that at that tithe any order was made .allowing the amendment; furthermore, an examination of" the original return shows that, if ,the same were attempted to be amended by inserting therein the words quoted above, the same could not have been inserted at any place therein so as to make any sense, and -the return would still fail absolutely in showing that any notice of levy was served upon the insurance company.

Following-the record of the above motion and ruling thereon, the record then states: “Plaintiff now offers in evidence the original records had upon the sale upon execution in the case of Black Hills Brewing Company v. John Giljevich et al.” Defendants objected to .this offer upon all the grounds stated in its objection to the allowance of the amended sheriff’s return. The record does not show any ruling upon this objection, nor any ruling admitting or rejecting the evidence offered. Attached to and forming a part of the original record sent up from the trial court are certain papers purporting to be copies of part of the proceedings in the case of the brewing company against Giljevich. These papers are in no manner certified to as copies of such papers; nor are thev marked as exhibits. They would appear to be copies of the following: Affidavit of default; judgment; sheriff’s return on execution; order to show cause, dated February 20, 1912, directed to the defendant Giljevich and to the insurance company, directing such parties to show cause, on February 27, 1912, why the 'sheriff of Lawrence county should not be permitted to amend his return upon the execution in accordance with a certain proposed amendment thereto attached; and an affidavit wherein the affiant claims to 'have been deputy sheriff and to have levied upon the chose in action, the subject-matter of the present action, and claims to have served upon 'the general agents of the insurance company at Lead, S'. D., on the 24th day of February, 1911, a certified copy of the execution in said action, together with a notice notifying said company that, as such deputy sheriff, he levied upon “a claim for loss by fire 'held by the defendants herein against the Middle West Fire Insurance Company to the amount of $800, upon which suit is now pending in the circuit court of Lawrence county,” and also claims that, through oversight, he failed to' incorporate a notation of such “action and levy” in the return which was made and filed herein. The proposed .amended return sets forth that, on February 24, 1911, notice of a levy upon the claim in question was served upon the said insurance company. This proposed amended return is dated February 27, 1912, but the order to show cause, together with the affidavit and proposed amended return, were originally filed in the office of the clerk of courts on February 20, 1912, and were served upon the attorneys for the insurance company on February 23, 1912. There 'is no order of any kind attached to these papers showing any ruling by the court upon such order to 'show cause; but there appears, among the papers forming the record sent up from the lower court in this action, what purports to be a copy of an order of the circuit court, made in the action of the brewing company against Giljevich, which order, after reciting, “This matter coming on to be heard upon the order to show cause heretofore issued upon the application of the sheriff to amend* his return upon the execution issued herein, which order to show causé was returnable * * * on February 27, 1912, the same having been duly postponed until February 28, 1912, the Middle West Fire Insurance Company appeared by its attorney * * * and objecting to the allowance of said amendment, but offering no evidence or affidavit in support of said'objections,” further recites: “Ordered that the said amendment, as attached to said order to -show cause, be and the same is hereby allowed; and it is further ordered that the said proposed- amendment attached to said order to show cause be filed by the clerk herein and be taken and considered as the sheriff’s amended return upon execution herein, heretofore made and filed with said execution. Done in open court at Deadwood, S- D., this 4th day of'March, 1912.” The above order was filed on March 4, 1912.

[1,2] Appellant assigns as error the ruling of the trial court, made upon the trial of this action, overruling his objections to the allowance, of the amendment to the sheriff’s- return. The respondent contends that such ruling cannot be considered upon this appeal, for the reason, as claimed by respondent, that said ruling was one not made in this action, but one made in: the action wherein the brewing company was plaintiff and Giljevich et al. were defendants. We think it is too clear for discussion that, if, as appears upon the face of the record herein, the brewing company did, upon and as a part of the trial o-f the action now before us upon appeal, move the circuit court of Lawrence county to allow -the correction of the sheriff’s return upon an execution issued upon a judgment entered in an entirely separate and distinct action, shell circuit court’s action was a nullity. If not a nullity, it was such a gross irregularity that appellant had a right to object thereto, and his objection should have been sustained. Moreover, in view of the settled record herein — settled without any objection on respondent’s part — respondent is foreclosed from claiming that tlie motion in question -was not made in this action, and that the ruling thereon was not made in this action.

[3] But if, in the face of the record herein, we were justified in considering that the motion was taken and received by all parties as a motion in the action between the brewing company and Giljevich et al., and that such proceedings were of the same effect as though the -court had, by an order made in this action, continued the same for the purposes of hearing and determining the motion in the other action, which would seem to be the contention of the respondent, then such motion and the ruling thereon have no proper place whatsoever in the record of the action now before us, as the record of such -oral proceedings was never offered in evidence in this action; the only method by which the proceedings in the other action could get into the record in the pending ac-, tion was by respondent, after it had had the sheriff’s- return amended -to then offer in evidence, as exhibits, the execution and return, together with such amended return.

[4] Respondeñt, recognizing the proper procedure, did, after making the oral motion above referred to, offer in evidence the original files in the other action. These were. objected to, and there is nothing to show whether the court overruled the objections and admitted the files, or sustained the objection and excluded such files, except as a ruling admitting -them may be -inferred from the fact that purported copies thereof are founded in the settled record herein. It will be noticed that the offer was of the “original records had upon the sale upon execution in the case of Black Hills Brewing Company v. John Giljevich et al.” The original records in existence on February 28, 1912, did not include the order of March 4, 1912, the order allowing the amendment to the return, as this order did not come into existence until several days after the close of the -trial from which this appeal is taken. Until such an order was made, the sheriff had no authority to amend his return; and therefore it conclusively appears that, prior to March 4, 1912, there was in existence no record evidence that notice of the levy had been given -to appellant, and therefore no evidence that title to the cause of action had passed to respondent.

[5] It will not do for the respondent to claim that the ruling made by the circuit judge upon respondent’s oral motion (even if such ruling could be held -as an order allowing an amendment to the return) was in evidence in this case, basing such contention upon the fact that, though made in another action, it was made in the presence and hearing of the jury in this action, because, ■even if an -order, other than one in writing, could have any validity whatsoever as an order allowing an amendment to a return (upon which question we do not feel called upon to pass); at the most it was but an order -made upon a motion asking that the sheriff be allowed to amend his return, which is certainly not the equivalent of an actual amendment of the return; it being well settled that a court cannot order an amendment to- be made, but can only authorize one to be made. Flynn v. Kalamazoo Circuit Judge, 138 Mich. 126, 101 N. W. 222, 4 Ann. Cas. 1167; Freeman on Executions, § 358, p. 2037. It therefore remained for the: sheriff, after permission granted by the court, to make the amendment, if he saw fit. The proposed amendment attached to the order to show cause could only become, in fact, an amendment by its filing as such after an order authorizing same, and no “Amended Return” was filed after and pursuant to the oral ruling of the court. In this case, until March 4, 1912, the circuit court did not, in fact, make any order, either oral or written, allowing an amendment; the only order it appears ever to have made was the written order made subsequent to the close of the trial of this action. Even if such order had been made in time, there would still be wanting any amended return made under the authority of such order.

[6] It follows, from the facts appearing beyond1 dispute herein, that, upon the evidence offered by the respondent to. prove ns title to the chose in action, there was no> proof of any levy upon such chose in action, as it is clear, under authority and reason, and, as we read respondent’s brief, stands conceded by respondent, that no valid levy could be made upon the chose in action without .notice to the debtor party, which in this case was the appellant. Ireland v. Adair, 12 N. D. 29, 94 N. W. 766, 102 Am. St. Rep. 561; Freeman on Executions, § 262a. Without a levy there could be no valid sale. Appellant asked the court to direct a verdict for ■the reason: “That it appears affirmatively from the testimony herein that the said plaintiff is not the owner of any claim against said company incurred by reason of loss by fire, * * * in that it appears that no sale was had or levy made upon said claim; the sheriff’s return, being the basis for sale, is conclusive of the proceedings of the sheriff, and does not recite or show that an alleged levy was made, or attempted to be made, against any claim Giljevich may -have had against this defendant.” This motion to direct a verdict was denied and exception taken thereto. In this ruling the trial court was clearly in error for the reasons herein-before stated, and for these reasons alone, without considering the other errors assigned, the judgment of the trial court is reversed.