Kohlman v. First National Bank

71 Miss. 843

Opinion

Woods, J.,

delivered the opinion of the court.

The action of the court below in permitting the sheriff to withdraw his pleas and file the proper affidavit required by our statute- — §§ 714, 715, code of 1892 — was so manifestly correct that any remark seems unnecessary. Indeed, any other action would have been in disregard of the spirit and the letter of our law, which confers on courts “ full power to allow all amendments to be made in any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors and mistakes in the name of the party or in the form of the action to be corrected.” The course of judicial procedure in this enlightened age of law has ceased to be a pathway beset with springs and traps to trip and ensnare the ignorant and the unwary, and now the humblest and the least learned may safely appeal to the courts of justice for the hearing and determination of their complaints and defenses, seeing it is the duty of such courts to lend all their powers to bring the merits of every controversy fairly to trial. In this case, Kohlman was the real defendant, and the court correctly permitted the nominal defendant, the sheriff, a mere stake-holder, to make affidavit as to the claim of the real party in interest. The contention of appellee’s counsel that Kohlman was not a proper party to be substituted, involves a total misconception of the design and meaning of the statutes referred to. Their proper construction lies upon their face, and they exactly met the necessities of this controversy. They were designed for just such cases.

The facts set up in Kohlman’s written claim to apart of the fund in the sheriff’s hands entitled him to judgment to the amount of such fund derived from the sale of the property levied on under his attachment suit. It appears from the written statement of Kohlman’s claim that his attachment writ was sued out October 26,1892, and levied upon the goods whose subsequent sale created the fund in dispute; that the constable who made the levy took possession of the property so levied upon, and returned said writ with the indorsement of his levy and action to the justice’s court from which it issued; that November 15, 1892, Kohlman recovered judgment in said magistrate’s court sustaining his attachment, and also judgment against the defendants in that suit for $150, and condemning the property so levied on to be sold to satisfy the judgment; that at and after the date of said levy, the constable was and remained in the exclusive possession and control of the property so levied upon, and, though subsequent to the levy, the sheriff attempted to make a levy of an attachment writ sued out by the bank, the appellee, yet, in fact, no levy was made by him; that after the recovery of judgment in November, 1892, as already stated, the constable properly advertised the property for sale, but before the day of sale arrived it was agreed by and between the constable and Kohlman’s attorneys on the one part, and the sheriff and the bank’s attorneys on the other part, that the property should not be sold, but should remain in the possession of the constable until the circuit court of Lauder-dale county should determine the rights of the respective parties in the premises; that in January, 1893, the said bank obtained judgment in its attachment suit — the defendants therein being the same persons against whom Kohlman had previously recovered his judgment — and in its judgment erroneously had condemned to sale the same property levied upon under Kohlman’s writ, the sheriff having pretended to levy the bank’s writ thereon, though he never had levied in truth; that the hank, after obtaining its judgment, well knowing Kohlman’s rights by virtue of his levy of his attachment and of his lien on the property, in violation of its agreement hereinbefore set out, wrongfully had an execution issued and put in the sheriff’s hands, and requested the officer to advertise the goods for sale; that Kohlman immediately protested to the officer, in writing, and notified the sheriff not to sell, but, in case he should sell, then to hold the proceeds arising from the sale of the property subject to the order of the said Lauderdale circuit court; that the sheriff, disregarding said protest, disregarding Kohlman’s rights and disregarding the said agreement, forcibly deprived said constable of the possession of the property, and sold the same under the bank’s venditioni exponas; that the sheriff obtained from such sale of the property $150, and now holds the same, and that Kohlman and not the bank is entitled thereto.

If these facts do not disclose inexpugnable ground on .which to rest Kohlman’s claim to the proceeds of the property, it is impossible to conceive of any state of case in which a third party could successfully propound a claim to the pro-needs of personal property taken and sold by an officer under legal process. There is not the slightest merit in any one of the numerous causes of demurrer assigned, and the court should have promptly overruled the same, and have required the bank to answer and contest Kohlman’s claim, or, in default thereof, have entered judgment in favor of the claimant.

The judgment of the court below is reversed, the demurrer is overruled and the cause remanded for further proceedings in accordance with this opinion.