Bartch, J.:
The defendant in this case, as sheriff of Salt Lake county, under a writ of attachment, levied upon, seized,, and afterwards, under execution, sold certain personal property. The plaintiff, claiming to be the owner thereof, and that 'he was wrongfully deprived of its possession, brought this suit in replevin to recover its possession, or the value thereof. The jury found that he was the owner and entitled to the possession, and the value of the property, with accrued interest, to be $3,252.72. After judgment was entered in accordance with the verdict, and a motion for a new trial overruled, the defendant prosecuted his appeal to this court. The main question to be determined is whether, under the pleadings, as shown by the record, the court erred in its ruling on the admission of evidence relating to the subject of fraud. It appears that the property in question originally belonged to the Utah Paint & Oil Company, and that it was by that company transferred and delivered to the plaintiff, by deed of assignment for the benefit of its creditors, and was go in his possession, by virtue of said deed, at the time of [184]*184the levy and seizure by the defendant. It further appears from the record that the writ of attachment in question was issued in a case in which the National Wall Paper Company was plaintiff, and the Utah Paint & Oil Company defendant, to recover a certain sum alleged to be due the National Wall Paper Company, and that the assignee of the defendant company, the plaintiff in the case at bar, was not a party to that suit. Under these circumstances the defendant, at the trial of this cause, offered evidence tending to show that -at the time of making -the assignment in question the Utah Paint & Oil Company had disposed of the property, to one Martha Ann Coombs, by chattel mortgage, and therefore had no interest therein; that the said mortgage was fraudulent and void as to creditors; and that the assignment was fraudulent, and made to defraud creditors. All of this evidence, under the objection of counsel for the plaintiff that the same was immaterial under the issues raised by the pleadings, was ruled out. The defendant then, to justify the levy and sale, offered the writs of attachment and execution, and the officer’s return thereto, which were admitted, but no other, evidence of the attachment proceedings was offered. Numerous offers were made to prove that the assignment under which the plaintiff proved title was fraudulent, all of which were rejected by the court.
Counsel for the appellant, while admitting that no fraud is alleged in the answer, insists that the court erred in excluding the proof offered, because the plaintiff alleged ownership generally, without disclosing any particular -source of title, and the defendant, in his answer, denied specifically all the allegations of the complaint. This contention seems to be supported by the weight of authority, and might avail the appellant, if his answer were otherwise sufficient. As a general rule, where a party to an action relies upon fraud he must plead it. In [185]*185replevin, however, the law seems to be settled, in most jurisdictions, that where the plaintiff alleges ownership generally, and right of possession, without disclosing origin of title, or stating facts showing it, the defendant may traverse the allegations of the complaint, and, under the issue thus formed, may prove that the plaintiff’s title was founded in fraud, and introduce any evidence which tends to show that the plaintiff had neither title in the property, nor right of possession thereof. This rule is doubtless based on the fact that in replevin the plaintiff is not bound to disclose any source of title, and therefore the defendant is not bound to anticipate the source of title under which the plaintiff may claim. Cobbey, Repl. § 752; Abb. Tr. Brief Pl. §§ 942, 958; Stephens v. Hallstead, 58 Cal. 193; Bailey v. Swain, 45 Ohio St. 657,16 N. E. 370; Schulenberg v. Harriman, 21 Wall. 44; Steel Works v. Bresnahan, (66 Mich. 489, 33 N. W. 834; Merrill v. Wedgwood, 25 Neb. 283, 41 N. W. 149; Swope v. Paul (Ind. App.), 31 N. E. 42; Graham v. Warner’s Ex’rs, 3 Dana 146; Mather v. Hutchinson, 25 Wis. 27; Mullen v. Noonan (Minn.), 47 N. W. 164; Delaney v. Canning, 52 Wis. 266, 8 N. W. 897. The rule above stated, however, under the circumstances of this case, cannot aid the appellant, because his plea is otherwise fatally defective. He averred that he levied upon and seized the property under and by virtue of a writ of attachment, as sheriff of Salt Lalse county, but utterly failed to plead the necessary facts in justification, although attachment, is a statutory remedy, wherein the. regularity of the proceedings will not be presumed. Nor did he even offer proof to establish such facts. The property was not found in the possession of the defendant in the attachment proceedings, but in the hands of a third .person, who claimed ownership thereof; and in such case, to justify the levy rand seizure, the officer must not only produce the writ, but must also aver and prove a valid [186]*186claim against the defendant in the attachment suit, and that the attachment proceedings conformed to the statute. This court so held in Snell v. Crowe, 3 Utah 26, 5 Pac. 522. That was an action similar to this, and Mr. Justice Emerson, delivering the opinion of the court, said: “An officer who seizes property in the hands of ihe debtor may justify under the execution or process, but when he takes property from a third person who claims to be the owner thereof, if on execution, he must show the judgment and execution; if on attachment, an indebtedness, the writ of attachment, and the procéedings on which it was based.” The necessity for such aver-ments in cases like the one at bar becomes more apparent when it is considered that in attachment'the writ is issued, on the application of the plaintiff ex parte, by the clerk of the court, who performs a mere ministerial act, and the proceedings being of statutory origin, and unknown to the common law, no intendment in favor of their regularity can be indulged in. The statute requires, among other things, that before the writ can be issued a suit.must be instituted, an affidavit filed, and an undertaking on the part of the plaintiff required; and it being, at best, a harsh remedy, those who avail themselves of it must be held to a strict compliance with the law. Therefore when an officer seeks to justify under the writ he is presumed to have knowledge of the grounds upon which the proceedings were based, and on which he assails the. possession. The preliminary requisites-to a valid writ in attachment are the existence of a debt for which suit has been Commenced, the filing of the affidavit, and undertaking, all of which being jurisdictional requirements. Comp. Laws Utah, 1888, § 3308 et seq. None of these can be disregarded in the answer, in a case like this, any more than can the writ or subsequent proceedings, including the execution and return, in the event of sale.
[187]*187There is a distinction between the class of cases where the property is found in the possession of the defendant in the attachment proceedings, and those where it is found in the possession of a stranger to the writ.
Free access — add to your briefcase to read the full text and ask questions with AI
Bartch, J.:
The defendant in this case, as sheriff of Salt Lake county, under a writ of attachment, levied upon, seized,, and afterwards, under execution, sold certain personal property. The plaintiff, claiming to be the owner thereof, and that 'he was wrongfully deprived of its possession, brought this suit in replevin to recover its possession, or the value thereof. The jury found that he was the owner and entitled to the possession, and the value of the property, with accrued interest, to be $3,252.72. After judgment was entered in accordance with the verdict, and a motion for a new trial overruled, the defendant prosecuted his appeal to this court. The main question to be determined is whether, under the pleadings, as shown by the record, the court erred in its ruling on the admission of evidence relating to the subject of fraud. It appears that the property in question originally belonged to the Utah Paint & Oil Company, and that it was by that company transferred and delivered to the plaintiff, by deed of assignment for the benefit of its creditors, and was go in his possession, by virtue of said deed, at the time of [184]*184the levy and seizure by the defendant. It further appears from the record that the writ of attachment in question was issued in a case in which the National Wall Paper Company was plaintiff, and the Utah Paint & Oil Company defendant, to recover a certain sum alleged to be due the National Wall Paper Company, and that the assignee of the defendant company, the plaintiff in the case at bar, was not a party to that suit. Under these circumstances the defendant, at the trial of this cause, offered evidence tending to show that -at the time of making -the assignment in question the Utah Paint & Oil Company had disposed of the property, to one Martha Ann Coombs, by chattel mortgage, and therefore had no interest therein; that the said mortgage was fraudulent and void as to creditors; and that the assignment was fraudulent, and made to defraud creditors. All of this evidence, under the objection of counsel for the plaintiff that the same was immaterial under the issues raised by the pleadings, was ruled out. The defendant then, to justify the levy and sale, offered the writs of attachment and execution, and the officer’s return thereto, which were admitted, but no other, evidence of the attachment proceedings was offered. Numerous offers were made to prove that the assignment under which the plaintiff proved title was fraudulent, all of which were rejected by the court.
Counsel for the appellant, while admitting that no fraud is alleged in the answer, insists that the court erred in excluding the proof offered, because the plaintiff alleged ownership generally, without disclosing any particular -source of title, and the defendant, in his answer, denied specifically all the allegations of the complaint. This contention seems to be supported by the weight of authority, and might avail the appellant, if his answer were otherwise sufficient. As a general rule, where a party to an action relies upon fraud he must plead it. In [185]*185replevin, however, the law seems to be settled, in most jurisdictions, that where the plaintiff alleges ownership generally, and right of possession, without disclosing origin of title, or stating facts showing it, the defendant may traverse the allegations of the complaint, and, under the issue thus formed, may prove that the plaintiff’s title was founded in fraud, and introduce any evidence which tends to show that the plaintiff had neither title in the property, nor right of possession thereof. This rule is doubtless based on the fact that in replevin the plaintiff is not bound to disclose any source of title, and therefore the defendant is not bound to anticipate the source of title under which the plaintiff may claim. Cobbey, Repl. § 752; Abb. Tr. Brief Pl. §§ 942, 958; Stephens v. Hallstead, 58 Cal. 193; Bailey v. Swain, 45 Ohio St. 657,16 N. E. 370; Schulenberg v. Harriman, 21 Wall. 44; Steel Works v. Bresnahan, (66 Mich. 489, 33 N. W. 834; Merrill v. Wedgwood, 25 Neb. 283, 41 N. W. 149; Swope v. Paul (Ind. App.), 31 N. E. 42; Graham v. Warner’s Ex’rs, 3 Dana 146; Mather v. Hutchinson, 25 Wis. 27; Mullen v. Noonan (Minn.), 47 N. W. 164; Delaney v. Canning, 52 Wis. 266, 8 N. W. 897. The rule above stated, however, under the circumstances of this case, cannot aid the appellant, because his plea is otherwise fatally defective. He averred that he levied upon and seized the property under and by virtue of a writ of attachment, as sheriff of Salt Lalse county, but utterly failed to plead the necessary facts in justification, although attachment, is a statutory remedy, wherein the. regularity of the proceedings will not be presumed. Nor did he even offer proof to establish such facts. The property was not found in the possession of the defendant in the attachment proceedings, but in the hands of a third .person, who claimed ownership thereof; and in such case, to justify the levy rand seizure, the officer must not only produce the writ, but must also aver and prove a valid [186]*186claim against the defendant in the attachment suit, and that the attachment proceedings conformed to the statute. This court so held in Snell v. Crowe, 3 Utah 26, 5 Pac. 522. That was an action similar to this, and Mr. Justice Emerson, delivering the opinion of the court, said: “An officer who seizes property in the hands of ihe debtor may justify under the execution or process, but when he takes property from a third person who claims to be the owner thereof, if on execution, he must show the judgment and execution; if on attachment, an indebtedness, the writ of attachment, and the procéedings on which it was based.” The necessity for such aver-ments in cases like the one at bar becomes more apparent when it is considered that in attachment'the writ is issued, on the application of the plaintiff ex parte, by the clerk of the court, who performs a mere ministerial act, and the proceedings being of statutory origin, and unknown to the common law, no intendment in favor of their regularity can be indulged in. The statute requires, among other things, that before the writ can be issued a suit.must be instituted, an affidavit filed, and an undertaking on the part of the plaintiff required; and it being, at best, a harsh remedy, those who avail themselves of it must be held to a strict compliance with the law. Therefore when an officer seeks to justify under the writ he is presumed to have knowledge of the grounds upon which the proceedings were based, and on which he assails the. possession. The preliminary requisites-to a valid writ in attachment are the existence of a debt for which suit has been Commenced, the filing of the affidavit, and undertaking, all of which being jurisdictional requirements. Comp. Laws Utah, 1888, § 3308 et seq. None of these can be disregarded in the answer, in a case like this, any more than can the writ or subsequent proceedings, including the execution and return, in the event of sale.
[187]*187There is a distinction between the class of cases where the property is found in the possession of the defendant in the attachment proceedings, and those where it is found in the possession of a stranger to the writ. In the former class if the writ was issued by a court or officer having lawful authority to issue it, and is in legal form, the officer may justify the levy by producing the writ but In the latter class the officer, to justify, must not only produce the writ, but must also show that it was regularly issued as provided by law. The reason for this distinction is found in the fact that when an attachment is improvidently issued the defendant has his remedy by motion to quash, or by suit on the undertaking, but a stranger to the writ and proceedings can be heard for neither of such purposes; hence, in his case, justice requires that the officer should know that the writ was regularly issued, and if he enforce an invalid writ, issued by a court or officer without jurisdiction, he does so at his peril. We think the rule is well settled that where an officer seizes property which is, under claim of ownership, in the possession of a stranger to the attachment proceedings, on which the writ was issued, he must, when sued in replevin, assume the burden of showing by affirmative averment and proof that such proceedings were regular, as required by the statute. Drake, Attachm. § 185a; Thornburg v. Hand, 7 Cal. 554, 566; Van Ettan v. Hurst, 6 Hill 311; Horn v. Corvarubias, 51 Cal. 524; Mathews v. Densmore, 43 Mich. 461, 5 N. W. 669; Noble v. Holmes, 5 Hill 194; Brichman v. Ross, 67 Cal. 601, 8 Pac. 316; Miller v. Bannister, 109 Mass. 289; Sexey v. Adkinson, 34 Cal. 346. The defendant having assailed the possession of a stranger to the writ, and havng failed to allege and prove that the attachment proceedings on which the writ was issued were regular, as provided by law, the evidence offered respecting the chattel mortgage, [188]*188and that tending to show fraud in the assignment, was wholly immaterial, and the court rightfully excluded it. Even if, as matter of fact, the assignment under which the assignee claimed title were fraudulent, and made to hinder and delay creditors of the assignor, still the defendant could not levy upon and disturb the possession of the plaintiff, who was not a party to the attachment suit, under a void writ. And this upon the principle that, as between two parties, neither of whom has title or right of possession to property, the one who has the property in custody has the better right, and cannot be deprived of the possession by a mere wrongdoer.
Counsel for the appellant also insist that the court erred in excluding at the trial a proposed amendment to the answer, in which fraud was alleged. An examination pji.the proposed amendment shows that it failed to supply any averment in justification, and therefore the court’s refusal to permit it was proper.
Counsel further maintain that the verdict was defective because it did not find separately the value of each article of the property seized. It is shown by the evidence that the defendant had disposed of all the property. He was therefore liable for all of it, and no injury could result to him because of the failure to find the value of each article. Even if there was a technical defect in the verdict, the defendant, not having objected to it at the time when it was received, cannot mow be heard to complain because of such defect.
The objection that the verdict was not rendered by a unanimous jury presents no open question in this court.
Other questions have been raised, and, while they have not escaped our attention, still we do not deem them of sufficient importance to require separate discussion. We perceive no reversible error in the-record. The judgment is affirmed.
Zane, C. J., and Mixer, J., concur.