Irwin v. Kessler

Ohio Superior Court, Cincinnati

Irwin v. Kessler

2 Cin. Sup. Ct. Rep. 1

DecidedMarch 15, 1870

StatusPublished

This text of 2 Cin. Sup. Ct. Rep. 1 (Irwin v. Kessler) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Irwin v. Kessler, 2 Cin. Sup. Ct. Rep. 1 (Ohio Super. Ct. 1870).

Pincite

Opinion

Storer, J.

The defendant, when sheriff of Hamilton . county, was ordered, by a process from this court, to attach the property of Joseph Eisner. After the attachment was issued, Eisner assigned all his interest to Irwin. Some composition was then made between Eisner and the creditor in attachment, and Kessler was ordered to surrender the property. Now, it is claimed, because he did not surrender, and the assignee was not able to get possession, Kessler is liable. This suit is brought by the assignee of the debtor. The sheriff levied on the property, which was in a mill. It was appraised, and he placed a proper person there to take care of it; but about the time the order was given by the creditor in attachment to surrender it up, a [2]*2justice of the peace issued his process, and a constable took possession without the knowledge and against the will of the sheriff, and proceeded to sell.

It was not the duty of the sheriff to interfere in a case of that kind, and his right to hold the property had ceased. It was a virtual release of the sheriff whenever this composition was made. The constable had sold the property and paid the money over; and the action should have been brought against him.

Judgment for the defendant.

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Storer, J.

The defendant, when sheriff of Hamilton . county, was ordered, by a process from this court, to attach the property of Joseph Eisner. After the attachment was issued, Eisner assigned all his interest to Irwin. Some composition was then made between Eisner and the creditor in attachment, and Kessler was ordered to surrender the property. Now, it is claimed, because he did not surrender, and the assignee was not able to get possession, Kessler is liable. This suit is brought by the assignee of the debtor. The sheriff levied on the property, which was in a mill. It was appraised, and he placed a proper person there to take care of it; but about the time the order was given by the creditor in attachment to surrender it up, a [2]*2justice of the peace issued his process, and a constable took possession without the knowledge and against the will of the sheriff, and proceeded to sell.

It was not the duty of the sheriff to interfere in a case of that kind, and his right to hold the property had ceased. It was a virtual release of the sheriff whenever this composition was made. The constable had sold the property and paid the money over; and the action should have been brought against him.

Judgment for the defendant.

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Bluebook (online)

2 Cin. Sup. Ct. Rep. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irwin-v-kessler-ohsuperctcinci-1870.