Vulcan Iron Works v. Edwards

36 P. 221, 27 Or. 563, 1894 Ore. LEXIS 137

Opinions

Opinion by

Mr. Justice Bean.

In Remdall v. Swackhamer, 8 Or. 502, and in Capital Lumbering Company v. Hall, 9 Or. 93, it was held that the verdict of a sheriff’s jury under section 286, Hill’s Code, is a complete indemnity to a sheriff proceeding in accordance therewith, and, if against the claimant, is a complete defense to an action by such claimant against the sheriff. But the contention for the plaintiff .is (1) that the sheriff can summon such jury and proceed with the trial only at the request of the claimant, and that a statement of ownership and demand of the property in writing, which on its face shows an intention to hold the sheriff responsible, is not such a request; and (2) that if such a claim and demand is sufficient to authorize the sheriff to institute pro ceedings-under the statute, it may be revoked at any time before tbe trial is had.

1. At common law, if the sheriff had any doubt, however acquired, respecting the title to property levied upon, he could, for his own protection and on his own motion, summon a jury to inquire into the title, and a verdict in favor of the claimant, it was held, would justify him in returning the execution nulla bona, and be a complete defense in an action for a false return: Farr v. Newman, 4 Term Rep. 633; Bailey v. Bates, 8 Johns. 184. The justice and propriety of protecting a purely ministerial officer from undue peril in the discharge of one of the most embarrassing duties of his office has caused many, if not most, of the states of the Union to preserve and reenact by statute in some form the principles of the common law: Murfree on Sheriffs, Chap. XIII. But this legislation differs so widely in detail and method of procedure that the adjudicated cases thereunder afford but little assistance in arriving at the proper construction of our statute upon the point involved in this case. The general tendency, however, as exhibited by this class of legislation, is to depart from the rigor of the old rule that in all cases “the sheriff acted at his peril,” and to exact from him only a reasonable service and liability, and afford him a reasonable protection. If the sheriff, under an execution, seizes property which does not belong to the defendant in the writ, he is a wrongdoer, and liable in an action by the owner without any demand or notice: Hexter v. Schneider, 14 Or. 184 (12 Pac. 668); Murfree on Sheriffs, § 962; Freeman on Executions, 254. If, however, the property seized is that of the defendant in the writ, and he releases it after the levy, he becomes liable to the plaintiff in the execution. He is, therefore, often placed in an embarrassing and perilous position, for if he retains the property he may be sued by the claimant, and if he does not he may be liable to an action by the plaintiff in the execution. To remedy this evil, and to protect the officer when a claim is made for the property in writing by some person other than the defendant in the writ, is the purpose and object of the statute, which enables him in such case to interpose the verdict of a jury as his justification for selling the property or returning it to the claimant, as the verdict may direct. But when may a sheriff resort to this proceeding for his protection ? At common law it seems he might call such a jury on his own motion, when from any source or in any manner he acquired information causing him to doubt the title of the property seized; but under the statute such proceedings can only be instituted by the claimant giving notice in writing of his claim, and until such notice the sheriff has no power or authority to- summon or call a jury, whatever his views may be as to the title to the property. The right to institute the proceeding belongs entirely to the claimant, and if he does not choose to give notice of his claim as provided by statute, he may resort at once to his common-law remedy against the sheriff; and in such case a sheriff can justify the levy only by showing that the property in fact belonged to the defendant in the writ. But if the claimant, in place of proceeding as above indicated, elects to give notice to the sheriff in writing of his claim, he thereby institutes the proceeding, and empowers the sheriff for his own protection to proceed according to the statute, and justify the future disposition of the property by the verdict of a jury; and if such verdict is against the claimant, he cannot maintain an action against the sheriff for the taking, or, if in favor of the claimant, it will be a complete defense to an action by the plaintiff in the writ.

But what is a claim within the meaning of the statute? It provides that when any person other than the defend ant in the writ shall claim the property seized, and shall “give notice of his claim in writing,” the sheriff may summon a jury to try the validity of such claim. This language is broad enough to include any assertion of title or demand for the property, made in writing. No particular form is prescribed for the notice, nor is it required that the claimant shall demand or request a trial of his rights by a sheriff’s jury; but “notice of his claim in writing ” is sufficient to enable the sheriff to protect himself under the statute. The word “claim” has a well settled legal meaning, and is defined by Mr. Justice Story to be “in a just juridical sense a demand of some matter as of right made by one person upon another to do or to forbear to do some act or thing as a matter of duty”: Prigg v. Pennsylvania, 41 U. S. (16 Pet.), 614. And another, and perhaps more generally recognized, definition is that it is “ a challenge by a man of the propriety or ownership of a thing which he has not in possession, but which is wrongfully detained from him”: 3 American and English Encyclopedia, 273. As the term imports, it is the assertion of a demand or the challenge of something as a matter of right. It is apparent, therefore, from this definition of the term “claim,” that when any person other than the defendant in the writ demands of the sheriff in writing the possession of the property levied upon, and challenges the ownership thereof by asserting title in himself, he “gives notice of his claim” within the meaning of the statute, whatever its form, and however he may attempt to limit its effect or operation. The authority of a sheriff to call a jury of inquest to try the right of property depends upon the assertion of a claim in writing by some third person; and when such claim is. made, whatever its form, or whatever the intention of the claimant may be, he becomes in law the actor, and must be held to have elected to submit his claim as against the sheriff to the decision of the sheriff’s jury. He is not bound to give the notice, or make any demand for the property, but may resort at once to his common-law remedy against the officer. We are aware that there is some slight conflict in the books as to whether a demand is necessary before bringing an action against an officer who has levied upon property in the possession of the defendant in the writ, which belongs to the plaintiff, but the rule in this state was settled by Hexter v. Schneider, 14 Or. 184 (12 Pac. 668). Where one person’s property is seized on execution against another, he has a choice of procedure; he may at once resort to his common-law remedy; or he may, if he prefers, notify the sheriff in writing of his claim, and, in the latter case, he must be held to have elected to abide by the result of his own voluntary act in putting it within the power of the sheriff to protect himself under the statute, whatever his intention may have been in making the claim. Having made the claim, and given notice thereof in writing, the law determines its effect. We conclude, therefore, that when plaintiff notified the sheriff in writing that it was the owner of the property seized, and demanded possession thereof, it thereby authorized him to have the validity of such claim, as against himself, determined by a jury, although no formal request was made for such jury, and even though plaintiff did not intend it should have that effect.

2. The remaining question is whether plaintiff, after having given such notice, could deprive the sheriff of the right to protect himself in the mode prescribed by statute by notifying him not to proceed with the trial. The contention for plaintiff is that such a proceeding is in the .nature of an action at law instituted by the claimant, and that he can, therefore, at any time discontinue it; but it seems to us that when the written notice is once given, the claimant can prevent the sheriff from proceeding under the statute only by withdrawing his claim, and so long as he insists upon his title to the property he cannot deny the right of the sheriff to secure indemnity to himself by the verdict of a jury. His giving the notice is a voluntary act, but when given it vests the right in the sheriff to protect himself against an action by the plaintiff if the verdict is in favor of the claimant, as well as against one brought by the claimant if the verdict is against him, and he cannot be denied this right by any subsequent act of the claimant short of the complete withdrawal of the claim. The sheriff is a ministerial officer, presumed to be wholly indifferent between the parties, and is entitled to the protection afforded by the statute whenever the conditions exist upon which it becomes operative. When the claimant gives his notice in writing, he fulfills the conditions upon which the sheriff may submit the claims of the respective parties to a jury; and after- such notice he has no more control of the proceeding, or interest in the verdict of the jury, than the plaintiff in the execution, and is no more entitled to discontinue the proceedings. . Nor is the proceeding in any sense in the nature of an action at law; it does not result in a judgment, nor does it determine or affect the title to the property in any way, but only the right of the respective parties to maintain an action against the sheriff. It seems to us, therefore, that when a claimant chooses to give the written notice of his claim he cannot, by a subsequent notice not to proceed with the trial, deprive the sheriff of the right to protect himself under the statute, while at the same time insisting upon his claim to the property. Such a construction would render the statute inoperative as a protection to the sheriff, for which it was obviously intended, while the construction we have adopted deprives the claimant of no right, as the sheriff is authorized to summon a jury only when a claim in writing is made by some third person, and if he chooses to refrain from so doing his right to an action against the sheriff is complete. We think, therefore, that the judgment of the court below should be affirmed, and it is so ordered. Affirmed.