Mr. JUSTICE HOLLOWAY
delivered the opinion of the court.
For two years prior to January 2, 1905, John J. Quinn was the duly elected, qualified and acting sheriff of Silver Bow county. The sureties upon his official bond during that time are not mentioned and are not parties to this proceeding. At the general election held in November, 1904, Quinn was reelected and on the second day of January, 1905, qualified and entered upon the discharge of his duties for his second term, with [98]*98this defendant, United States Fidelity and Guaranty Company, surety upon his official bond for that term. On December 20, 1901, there had been placed in Quinn’s hands, as sheriff, an execution issued on a judgment recovered by Charles E. Nickey against this plaintiff. At that time plaintiff owned and was possessed of certain mining claims, mining fixtures, machinery, and tools used in working such mining claims. On January 3, 1905, and after the beginning of his second term, Quinn, as sheriff, sold the fixtures and mining machinery under the execution mentioned above, to satisfy the Nickey judgment. At such sale one Charlton became the purchaser, and thereafter took pos*session of the purchased property and removed it. On February 27, 1905, after a hearing the district court made an order vacating the sale, and directing the surrender of the property to the Britannia Mining Company, this plaintiff. This action •was thereupon brought against the United States Fidelity and Guaranty Company, as surety on Quinn’s official bond for his second term. It is alleged that Quinn sold the property on January 3, 1905, without having given any previous notice of such sale, except a posted notice of five days only; that Charlton broke the fastenings and removed the machinery, and in so doing certain parts were broken and otherwise injured; that by reason of the removal of the machinery the works in the mining claims were flooded and great damage done; that the plaintiff company was at great expense in returning the machinery to its place and in renewing broken and missing parts. It is alleged that the sale by the sheriff under the circumstances constituted a breach of official duty. The prayer is for judgment for $11,000 damages, and costs.
The answer admits the corporate existence of the defendant company; the election, qualification and service of Quinn as sheriff; the giving of the official bond by the defendant as surety for Quinn during his second term; that the damages claimed by plaintiff have not been paid; denied generally every other allegation in the complaint; and pleads affirmatively (1) that the levy under the Nickey execution was made during Quinn’s first, term; and (2) the pendency of another action. A demurrer [99]*99was sustained to each of these affirmative defenses, and, defendant electing to stand upon its answer, the cause proceeded to trial, which resulted in a general verdict in favor of the defendant. Plaintiff thereupon moved for a new trial upon all the statutory grounds, except excessive verdict. A bill of exceptions in support of the motion was prepared and settled, and on September 12, 1910, the court by a general order granted the motion, and defendant appealed.
1. It is insisted by appellant that, if the sheriff’s action in selling the property, as it was sold, gave rise to any liability, it was a liability incurred during his first term, for which appellant is not responsible; and this contention is made upon the theory that the entire proceedings of the sheriff under the execution, from the date of its levy until and including the sale, constituted an entirety, an indivisible act, and since such act had its inception during Quinn’s first term, the liability, if any, attached as of the date of the levy.
The property sold by Quinn was of such character that it was deemed affixed to the mining claims (Rev. Codes, sec. 4428), and was real property. (Sec. 4425.) Section 6828 provides that, before real property can be sold on execution, notice of sale must be given for twenty days by posting and publication. Section 6829 provides: “An officer selling without the notice prescribed by the last section forfeits five hundred dollars to the aggrieved party, in addition to his actual damages. # * * ” It will [1] be determined at once that in selling this machinery as personal property, upon five days’ notice only, Quinn violated the provision of section 6828 above, and subjected himself and his bondsmen to the penalty of section 6829.
To the contention of counsel for appellant that the wrong was done when the levy was made, it would seem sufficient answer to say that the penalty prescribed by the statute is affixed to a wrongful sale, not a wrongful levy. It appears that the Nickey judgment was rendered in Silver Bow county, where the property sold by Quinn was situated. Section 6807 provides that from the time a judgment is docketed it becomes a lien upon the real property of the judgment debtor in that county, not exempt, [100]*100and continues for six years, unless the judgment is satisfied. "While it does not appear from the complaint in this action when the Nickey judgment was rendered or docketed, evidence was admitted, without objection, which tends to show that the judgment was obtained some time in 1904 prior to the date the execution was issued. In the absence of anything to the contrary, it will be presumed that the clerk of the district court performed his official duty as prescribed by section 6807 above. It may be said, then, that it fairly appears from this record that at the time the execution was issued, and thereafter up to the time the sale of January 3,1905, was made, the judgment was a lien upon the property sold. While counsel for appellant insist that Quinn’s wrongful act was in making the levy, they have adroitly refrained from defining the term “levy” as applied to an execution issued upon a judgment, which is itself a lien upon the real property sought to be sold. The term “levy” has a well-defined meaning; but it cannot apply to an execution issued upon a judgment of this character. The object of a levy is to bring the property within the custody of the law and prevent the judgment debtor from disposing of it to the prejudice of the creditor before sale can be made. But in this instance the Nickey judgment was itself a lien upon the property to be sold. The property was already in the custody of the law and beyond the control of the judgment debtor, so far as the rights of the creditor were concerned. The execution was the mere instrumentality through which the creditor might reap the fruit of a seizure which had already been made by virtue of the judgment lien. In such a case the Code contemplates that the sheriff shall give the required notice and sell. Nothing more is required, and the references to a levy, in section 6827 and elsewhere, can apply only to property of a character different from that we are [2] now considering. To make a formal levy in a ease of this kind would be an idle ceremony, without significance, legal or otherwise. These views follow the reason of the law, and are supported by the authorities from states having similar statutory provisions. (Wood v. Colvin, 5 Hill, 228; Bagley v. Ward, 37 [101]*101Cal. 121, 99 Am. Dec. 256; Tullis v. Brawley, 3 Minn. 277 (Gil. 191); Folsom v. Carli, 5 Minn. 333 (5 Gil. 264), 80 Am. Dec. 429; Knox v. Randall, 24 Minn. 479.) The principle here involved was recognized by this court in Holter Hardware Co. v. Ontario Mining Co., 24 Mont. 184, 61 Pac.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. JUSTICE HOLLOWAY
delivered the opinion of the court.
For two years prior to January 2, 1905, John J. Quinn was the duly elected, qualified and acting sheriff of Silver Bow county. The sureties upon his official bond during that time are not mentioned and are not parties to this proceeding. At the general election held in November, 1904, Quinn was reelected and on the second day of January, 1905, qualified and entered upon the discharge of his duties for his second term, with [98]*98this defendant, United States Fidelity and Guaranty Company, surety upon his official bond for that term. On December 20, 1901, there had been placed in Quinn’s hands, as sheriff, an execution issued on a judgment recovered by Charles E. Nickey against this plaintiff. At that time plaintiff owned and was possessed of certain mining claims, mining fixtures, machinery, and tools used in working such mining claims. On January 3, 1905, and after the beginning of his second term, Quinn, as sheriff, sold the fixtures and mining machinery under the execution mentioned above, to satisfy the Nickey judgment. At such sale one Charlton became the purchaser, and thereafter took pos*session of the purchased property and removed it. On February 27, 1905, after a hearing the district court made an order vacating the sale, and directing the surrender of the property to the Britannia Mining Company, this plaintiff. This action •was thereupon brought against the United States Fidelity and Guaranty Company, as surety on Quinn’s official bond for his second term. It is alleged that Quinn sold the property on January 3, 1905, without having given any previous notice of such sale, except a posted notice of five days only; that Charlton broke the fastenings and removed the machinery, and in so doing certain parts were broken and otherwise injured; that by reason of the removal of the machinery the works in the mining claims were flooded and great damage done; that the plaintiff company was at great expense in returning the machinery to its place and in renewing broken and missing parts. It is alleged that the sale by the sheriff under the circumstances constituted a breach of official duty. The prayer is for judgment for $11,000 damages, and costs.
The answer admits the corporate existence of the defendant company; the election, qualification and service of Quinn as sheriff; the giving of the official bond by the defendant as surety for Quinn during his second term; that the damages claimed by plaintiff have not been paid; denied generally every other allegation in the complaint; and pleads affirmatively (1) that the levy under the Nickey execution was made during Quinn’s first, term; and (2) the pendency of another action. A demurrer [99]*99was sustained to each of these affirmative defenses, and, defendant electing to stand upon its answer, the cause proceeded to trial, which resulted in a general verdict in favor of the defendant. Plaintiff thereupon moved for a new trial upon all the statutory grounds, except excessive verdict. A bill of exceptions in support of the motion was prepared and settled, and on September 12, 1910, the court by a general order granted the motion, and defendant appealed.
1. It is insisted by appellant that, if the sheriff’s action in selling the property, as it was sold, gave rise to any liability, it was a liability incurred during his first term, for which appellant is not responsible; and this contention is made upon the theory that the entire proceedings of the sheriff under the execution, from the date of its levy until and including the sale, constituted an entirety, an indivisible act, and since such act had its inception during Quinn’s first term, the liability, if any, attached as of the date of the levy.
The property sold by Quinn was of such character that it was deemed affixed to the mining claims (Rev. Codes, sec. 4428), and was real property. (Sec. 4425.) Section 6828 provides that, before real property can be sold on execution, notice of sale must be given for twenty days by posting and publication. Section 6829 provides: “An officer selling without the notice prescribed by the last section forfeits five hundred dollars to the aggrieved party, in addition to his actual damages. # * * ” It will [1] be determined at once that in selling this machinery as personal property, upon five days’ notice only, Quinn violated the provision of section 6828 above, and subjected himself and his bondsmen to the penalty of section 6829.
To the contention of counsel for appellant that the wrong was done when the levy was made, it would seem sufficient answer to say that the penalty prescribed by the statute is affixed to a wrongful sale, not a wrongful levy. It appears that the Nickey judgment was rendered in Silver Bow county, where the property sold by Quinn was situated. Section 6807 provides that from the time a judgment is docketed it becomes a lien upon the real property of the judgment debtor in that county, not exempt, [100]*100and continues for six years, unless the judgment is satisfied. "While it does not appear from the complaint in this action when the Nickey judgment was rendered or docketed, evidence was admitted, without objection, which tends to show that the judgment was obtained some time in 1904 prior to the date the execution was issued. In the absence of anything to the contrary, it will be presumed that the clerk of the district court performed his official duty as prescribed by section 6807 above. It may be said, then, that it fairly appears from this record that at the time the execution was issued, and thereafter up to the time the sale of January 3,1905, was made, the judgment was a lien upon the property sold. While counsel for appellant insist that Quinn’s wrongful act was in making the levy, they have adroitly refrained from defining the term “levy” as applied to an execution issued upon a judgment, which is itself a lien upon the real property sought to be sold. The term “levy” has a well-defined meaning; but it cannot apply to an execution issued upon a judgment of this character. The object of a levy is to bring the property within the custody of the law and prevent the judgment debtor from disposing of it to the prejudice of the creditor before sale can be made. But in this instance the Nickey judgment was itself a lien upon the property to be sold. The property was already in the custody of the law and beyond the control of the judgment debtor, so far as the rights of the creditor were concerned. The execution was the mere instrumentality through which the creditor might reap the fruit of a seizure which had already been made by virtue of the judgment lien. In such a case the Code contemplates that the sheriff shall give the required notice and sell. Nothing more is required, and the references to a levy, in section 6827 and elsewhere, can apply only to property of a character different from that we are [2] now considering. To make a formal levy in a ease of this kind would be an idle ceremony, without significance, legal or otherwise. These views follow the reason of the law, and are supported by the authorities from states having similar statutory provisions. (Wood v. Colvin, 5 Hill, 228; Bagley v. Ward, 37 [101]*101Cal. 121, 99 Am. Dec. 256; Tullis v. Brawley, 3 Minn. 277 (Gil. 191); Folsom v. Carli, 5 Minn. 333 (5 Gil. 264), 80 Am. Dec. 429; Knox v. Randall, 24 Minn. 479.) The principle here involved was recognized by this court in Holter Hardware Co. v. Ontario Mining Co., 24 Mont. 184, 61 Pac. 3, in holding that real property subject to a lien by attachment may be sold under execution without any further levy.
Our conclusion is that the sale made by Quinn constituted a wrongful act, which is the subject of plaintiff’s complaint.
2. It is urged that in this action plaintiff failed to prove its corporate existence; but there was not any issue made upon that [3] question. The complaint alleges that the plaintiff is a corporation organized under the laws of Wisconsin, with its principal office in the city of Milwaukee. The denial in the answer is: “That as to whether or not the plaintiff, Britannia Mining Company, is now or at any of the times in said complaint mentioned was duly, or at all, organized or existing under or by virtue of the laws of the state of Wisconsin, or having its office or principal place of business in the city of Milwaukee in said state or elsewhere, this answering defendant denies that it has any knowledge or information thereof sufficient to form a belief.” This is a negative pregnant, which does not raise any issue as to the corporate existence of the plaintiff, but rather admits that the plaintiff is a corporation organized under the laws of some state. (Bourke v. Butte etc. Power Co., 33 Mont. 267, 83 Pac. 470.)
3. Apparently counsel desire this court to intimate in advance the extent of Quinn’s liability for the wrongful sale. But we cannot anticipate that another trial will be had upon the pleadings as they are presented in this record, and any announcement of ours at this time would be obiter.
Since upon the undisputed evidence plaintiff was entitled to [4] a verdict for some amount, the general verdict in favor of defendant was not supported by the evidence, and the order granting a new trial was clearly correct, and is affirmed.
Mr. Chief Justice Brantuy and Mr. Justice Smith concur.