Carr v. Meade's Ex'x

77 Va. 142, 1883 Va. LEXIS 45

• Court: Supreme Court of Virginia
• Decided: February 8, 1883
• Status: Published

Opinion

Richardson, J.,

delivered the opinion of the court.

These cases turn upon precisely the same questions of law and fact, and may therefore, for all the purposes of this opinion, he treated as one.

The appellees, Clagett’s executors, and the appellee, Mead’s executrix, moved separately in the county court of Loudoun county for judgments against William F. Barrett, late sheriff of said county, and his sureties as such—that is to say, Clagett’s executors moved for a judgment against sqid sheriff and his sureties for the sum of $1,202.20, with interest thereon from the 7th day of May, 1875'; and Mead’s executrix moved for a judgment, against the same parties, in same court, for the sum of $819.87, with interest from same date. These sums said Barrett had, by a final decree in the case of Barrett, sheriff, against French, Bichards & Co. and als., in the circuit court of Loudoun county, been ordered to pay to said parties respectively out of funds held by him as sheriff.

The facts and attendant circumstances are these: On the 11th day of January, 1871, there issued from the clerk’s office of the circuit court of Loudoun county an execution in favor of French, Bichards & Co. against one Samuel M. Boss for tlje sum of $461.45, and costs. This execution went into the hands of William F. Barrett, then sheriff of Loudoun county, and was by him levied upon the entire stocic of goods in the store-house of said Boss, situated in the town of Leesburg, in said county.

The sheriff had scarcely advertised the goods for sale, under his said levy, when he received notices from sundry persons of conflicting claims upon the goods thus levied on, some from parties asserting that said Boss held certain of said goods as their agent, some others from parties claiming liens by virtue of prior executions which had issued but had not been levied. Bone of them, however, forbade the sale, all were content to look to the proceeds of sale for the satisfaction of their claims; and said sheriff, after being first indemnified by French, Richards & Co., the plaintiffs in the execution which he had levied, proceeded to make sale, and did sell the entire stock of goods levied on, and realized therefrom about $2,300, and without paying over any part of the proceeds, either to French, Richards & Co., or any other claimant, at July rules, 1811, filed his bill in the county court of Loudoun county in his name, as sheriff of said county, against said French, Richards & Co., and others, claimants to said proceeds, including the appellee, Mead’s executrix.- In the progress of this chancery suit, the appellees, Clagett’s executors, were made parties. In this bill, said Barrett, suing as sheriff, set forth the foregoing facts, showing the difficulties in which he, as sheriff, found himself involved—averred that he was utterly unable to determine who, among all these conflicting claimants, was entitled to share in the fund in his hands; and in invoking the aid and instruction of the court to so direct the distribution of same, as to protect him and the creditors, he, in language strongly expressive of the situation in which he found himself, says: “ He is brought to a stand-still in the discharge of his duty.” And in said bill he prayed that the various claimants be convened in that suit, and the fund distributed by order of court. Later this suit was removed, by consent of parties, to the circuit court of Loudoun county.

The duty of settling the rights and priorities of so many conflicting claimants proved both tedious and difficult. The contention seems to have dragged its way through a period of about four years. At last, after an account had been ordered and taken to ascertain the rights and priorities of the different claimants, and the same had been twice recommitted and restated without any very definite result, the circuit court of Loudoun, in the most just possible way, solved the whole problem, by holding that the burden of proof was on the junior execution creditor; that the oldest execution was a lien on all the goods in store during its vitality; the next a lien upon any surplus remaining in store of the original stock after the first execution was satisfied, and also upon any goods added to the stock after the return-day of the first execution; and so on as to succeeding executions. This decree was rendered at the April term, 1815, of said circuit court. By it, and first in order, said Barrett was ordered to pay to the appellees, Clagett’s executors, the sum of $1,202.20; and to the appellee, Mead's executrix, the sum of $819.81.

From this decree an appeal was taken to this court, where the case lingered until 1819, when it was dismissed upon a rule to print. By this time Barrett had applied to his own use the fund in his hands, arising from the sale made under his levy aforesaid, and had become insolvent. Inasmuch as Barrett's official bond had been deemed ample, no other security had been required in granting the appeal than was sufficient to meet the costs, and when he had squandered the fund held by him and become insolvent, no remedy was left the appellees, but to proceed against him and his sureties, the appellants.

This the appellees did by motion, after due notice, in the county court of Loudoun, under section five of chapter one hundred and sixty-three of the Code, which reads: “The court to which, or in, or to whose clerk or office, any bond taken by an officer, or given by any sheriff, sergeant or constable, is required to be returned, filed or recorded, may, on motion of any person, give judgment for so much money as he is entitled, by virtue of such bond, to recover by action.''

The appellants, the sureties of said Barrett as sheriff, having been duly served with notice' of the motion, appeared and resisted the same upon the following grounds: (1) That the court had no jurisdiction; (2) that the notice was insufficient by reason of vagueness and uncertainty; and (8) for want of competent evidence—they objecting to and insisting that the record in said chancery suit of Barrett, sheriff v. French, Richards & Co. and others, offered by the plaintiff, was not admissible in evidence against them. All of these motions were overruled, and thereupon the defendants in said motion moved the court to allow said Barrett, late sheriff, to amend his said return in a manner materially altering the legal effect thereof, if not flatly contradicting the same. This motion, as well as the others was, under the circumstances, properly overruled, as will hereinafter he shown. But the said county court, after hearing the evidence, and although it was admitted by the defendants that said Barrett, at the time of the service of said notice, was insolvent, on the merits, gave judgments for the defendants; to which judgments the plaintiffs excepted, and applied to and obtained from the circuit court of Loudoun county a writ of error and supersedeas.

On the 24th day of April, 1880, the circuit court of Loudoun county heard the causes, and reversed and annulled the said judgments of the county court on the merits, and proceeding to give such judgment as the county court ought to have given, rendered a judgment in favor of the then appellants, Clagett’s executors,' and in favor of the then appellant, Mead’s executrix, each for the penalty of said Barrett’s official bond, to be discharged by said sums of $1,202.20, and $819.8*7, respectively, with interests and costs. To these judgments of the circuit court of Loudoun county the appellants obtained a writ of error and supersedeas, .and the cases are now to be finally determined by this court.

The same objections made in the county court, and repeated in the circuit court, are relied upon here. It is important, therefore, to notice them in the order they were made.

Eirst, as to the question of jurisdiction. If the fifth section of chapter one hundred and sixty-three of the Code was in force and unrepealed when proceedings in these cases were commenced in the county court, it is plain that it gives the motion and jurisdiction to hear and determine it to that court, in the clerk’s office of which a sheriff’s bond is required to be, or is, in the particular instance, actually recorded as authorized by law. By the third section of chapter forty-nine of the Code, a sheriff is permitted ‘to have his bond approved, and to qualify before the judge of either the county or circuit court of his county, either in term time or in vacation; hut it is provided that if the qualification is in vacation, the certificate thereof, and the oath, shall he returned to the clerk of the county court. In this case the record discloses the fact that the county court, in trying these motions, expressly found the fact that the sheriff in this case did qualify before the county court, and that his bond was recorded in the clerk’s office thereof. This would seem to he conclusive. But it is insisted by counsel for the appellants that said section five of chapter one hundred and sixty-three was repealed by section nine of chapter three hundred and ninety-five of the acts of 1812-3, which reads: “Sections sixteen of chapter one hundred and fifty-seven, and five of chapter one hundred and fifty-eight of the Code of 1860, and three and four of chapter thirty-eight of the acts of 1869-10, and all acts and parts of acts in conflict or inconsistent with this act are and shall he repealed on and from the day this act goes into effect,” &c. It is not pretended that the act just quoted, in terms, refers even to the fifth section of chapter one hundred and sixty-three, hut it is contended that the latter is in conflict and inconsistent with the repealing act of 1812-3, and is repealed by the latter clause thereof. It is apparent, however, that there is no conflict, no inconsistency between the acts in question. Nor was said section five, of chapter 163, ever in any sense dependent upon the several sections, or either of them, repealed, by the act of 1812-3. On the contrary, section five of chapter 163 was and is entirely independent, and intended by the legislature to afford a cheap and expeditious remedy by motion in many cases which might he enumerated. The prime object of the act of 1812-3 was simply to withdraw from the county courts certain chancery jurisdiction, and not in .any way to interfere with the peculiarly appropriate jurisdiction conferred thereon by the said fifth section of chapter 163. The subject again underwent revision in 1874, when the legislature, so far from curtailing, enlarged and amplified the jurisdiction of the county courts hy amending and reenacting sections three, four, six and twelve of chapter 154 of the Code of 1873. See chapter 144, acts 1874. By the fourth section of chapter 154, it is declared, among other things, that the county court “shall have jurisdiction to hear and determine all motions and other matters made specially cognizable therein by any statute.” And the legislature, in the act of 1874, before referred to, was careful to retain the language just quoted. And not only so, but amended the twelfth section aforesaid so as to read: “All matters or things authorized by law to be done by or in the county court, may be done at any term thereof.” This is of special significance when we see, as was the fact, that motions under the fifth section of chapter 163 were, prior thereto, cognizable only at quarterly terms of the county courts. It is manifest, therefore, that the said fifth section of chapter 163 was not repealed by section nine of chapter 395 of the acts of 1872-3, and that these motions were properly and specially cognizable in the county court.

As to the motion to quash the notices in these cases, it is only necessary to say the notices clearly informed the defendants of the character and object of the motions to be made, and were in all respects sufficient.

We will next notice the objection by the defendants in these motions, to the introduction, on behalf of the plaintiffs in said motions, of the record in said chancery suit of Barrett, sheriff, against French, Richards & Co., and others. This was a strikingly strange objection to come from the defendants, especially when we reflect that Barrett, as sheriff, instituted that suit and made that record for the avowed purpose of protecting himself as sheriff, as well as the claimants to the fund in his hands, by a decree judicially determining the rights of all the parties, and directing a proper distribution of the fund. It was a matter peculiarly within the province of a court of equity. And when involved as sheriff in the troubles which endangered himself and sureties; when, to use his own very expressive language, he had heen brought to a “stand-still,” and was relieved by a decree, making his duty plain and easy, he, in the meantime, having squandered the fund, comes forward, when these creditors of his only ask for the portions allotted them by a decree made at his instance and for his protection, and proposes to amend and explain away his official return, which is verity itself, and upon the faith and effect of which he had induced a court of equity to come to his relief by the decree in question. The decree of the circuit court was the judgment of -a court of competent jurisdiction, founded, to a large extent, upon the return of this sheriff—that return itself was a matter of record, and as such unimpeachable in any mere collateral proceeding. It had enhanced dignity, in the fact that it had properly become an important part of the record in said chancery suit. It was, under the circumstances, conclusive as well against the sureties as against Barrett himself; for the return was made, and the responsibility increased in the usual course of the duties and transactions of a sheriff. There is no intimation that the return had been procured by fraud or collusion. All the objection rests on the fact, that in the course of taking the account said Barrett had, before tbe commissioner taking the same, given his deposition, tending to show that he had levied the execution of French, Richards & Go. on only a part of the stock of goods found in the store-house of said S. M. Boss, and that the residue and major part of said goods were sold by him as agent of the former sheriff, into whose hands the prior executions had gone... It is plain that he had no legal authority to act as agent in the discharge of a plain official duty for any former sheriff. It is plain that he not only had no authority to explain away his return, in this incidental way while giving his deposition in said chancery suit, but that he had no right, and could not amend his return except by leave of the court upon notice to the parties in interest. It is not strange, therefore, that the court refused to permit him to amend in the way proposed. He did not, in the county court, ask to amend. It is apparent, then, that the idea of amending was an afterthought and wholly inadmissible. To make true returns on all process, says Judge Cabell, in Norris v. Cumming, 2d Ran. 351, is a duty which forms an important part of the condition of a sheriff’s bond. The return, therefore, in this case, if false, was a violation of the condition of the bond, and it was injurious to the creditor, as it barred him from taking out and prosecuting another execution. If then a sheriff makes a return, and the consequences of that return are about to be brought to bear, as in this case, upon him and his sureties, it would be strange, indeed, that his sureties, those who have bound themselves that all his returns shall be true, should be permitted to escape, by alleging that the return is false, by alleging that which of itself is a forfeiture of their bond, and an injury to the creditor. See also 4th Minor’s Institutes, 839; Henry v. Stone, 2d Ran. 455, and Herman on Executions, § 242.

In another view, and not in derogation of the salutary principle that every man is entitled to his day in court, the record in said chancery suit was properly evidence prima facie against said sureties, although they were not parties thereto. Munford v. Overseers of the Poor, 2 Ran. 313; Jacobs v. Hill, 2 Leigh, 393; Cox v. Thomas, 9 Grat. 323; Crawford v. Tuck, 24 Grat. 116, and Supervisors v. Dunn, 27 Grat. 622.

There is but one other question raised which deserves notice. It is the claim of appellants that the levy made by Barrett, their principal, was, except as to some five hundred dollars, in value of the stock of goods levied on, made by him by virtue of the prior executions turned over to him by one Smith, a deputy of Summerfield Bolyn, the sheriff of Loudoun county, next preceding Barrett. This, too, rests upon the voluntary statement made by Barrett in his said deposition, given before the commissioner who took the account, in the suit of Barrett, sheriff v. French, Richards & Co. and others. It is to the effect that some $500 in value of the goods levied on had been added to the stock of Boss, after the return day of the executions which had gone into the hands of the preceding sheriff. But Barrett does not even intimate that he was able to identify these goods and levy upon them only. In fact, he could not say this, for it would have appeared manifestly untrue. What goods had been removed by Boss, the debtor, .since the return day of the prior executions, was the very thing which the circuit court of Loudoun, with the aid of its commissioners and counsel, had in vain attempted for four years to find out. Barrett evidently knew nothing about it. He only knew from certain hills and invoices that a portion of Boss’s stock had been received since the return day of the prior executions; but he did not pretend that those goods were in the stock when he made his levy, or were distinguished or distinguishable from the stock at large.

In his hill in his suit of Barrett, sheriff v. French, Richards & Co., and others, Barrett says that he levied on the entire stock, and sold accordingly. In his return he says that he levied on the whole, and the commissioner who took the account reports the same fact. And throughout the entire record there is no evidence that Barrett sold the goods in question under any levy save his own.

Counsel for the appellants insist, however, that a large portion of the goods levied on were not legally liable; in other words, that it was legally irtlpossible for Barrett to levy upon them, because they say they were in the custody of the law under senior executions in the hands of the preceding sheriff. The claim is not borne out by the record, or any thing therein. If Barrett made an excessive levy, or upon goods in the legal-custody of the preceding sheriff, it is, or was for the parties injured, to complain of such trespass. Surely the appellees could not he kept out of their just rights by the pretence that Barrett, as sheriff, had exercised the important functions of his office as the mere agent, in whole or part, of the preceding sheriff. It is for the purposes in hand enough that Barrett levied upon and sold the entire stock of goods under color oí his office; that the entire proceeds of sale went into his hands; that the circuit court of Loudoun county has judicially ascertained, by a decree not appealed from, how that fund shall be distributed, and that the appellees respectively are entitled to the sums for which they have obtained judgments at law. For these reasons the said judgments of the circuit court of Loudoun county are both plainly right, and must be affirmed.

Affirmed.