Under the law of Oregon which was in force in Alaska when the
seizure and levy of the plaintiff's goods were made by the
defendant as marshal of Alaska under a writ of attachment, that
officer could not, by virtue of his writ, lawfully take the
property from the possession of a third person, in whose possession
he found it.
The case is stated in the opinion of the court.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is an action for damages, brought by the plaintiff in
error, who was also plaintiff in the court below, and we will
therefore so designate him, against the defendant, by virtue of his
office, caused by the taking from the possession of the plaintiff
of a certain stock of goods, wares, and merchandise.
The goods originally belonged to one Joe Levy, who sold them to
one Levine by verbal sale, and as a part of the consideration
Levine assumed to pay a debt due to the plaintiff. Levine sold them
to one Kendall, who assumed to pay the same debt. Kendall sold and
delivered them to plaintiff.
The defendant was, at the time of the taking of the goods,
marshal of Alaska, and he justified the taking under and by virtue
of attachments issued out of the district court against Levy, one
in the case of Powers Dry Goods Co. v. Levy,
Page 181 U. S. 563
other in the West Coast Grocery Co. v. Levy,
claimed that the transfers by Levy were in fraud of his
The plaintiff replied that he had bought the goods from third
persons for a valuable consideration, denied all fraud, and further
pleaded that, during all the time from prior to the commencement of
the actions mentioned in defendant's answer until and at the time
of the taking, he was in the actual and exclusive possession of the
goods, and denied that defendant ever made any levy whatever upon
Defendant filed a supplemental answer at the trial, setting up
that the attachments had merged in judgments upon which executions
had issued, the goods sold, and the judgments satisfied.
The case was tried before a jury, and resulted in a verdict for
Motion for a new trial was made and overruled, and judgment
entered for defendant. This writ of error was then sued out.
In the attachment suits against Levy, summons was issued, but
not served, and substituted service was afterward obtained by
publication. The affidavits for the attachments did not mention the
amount of indebtedness claimed, and the sufficiency of the
substituted service and the validity of the judgment based upon it
are attacked on that ground.
It is also contended that the levies of the attachments were
invalid, and error is assigned on the admission of the testimony
and in giving instructions to the jury.
(1) The laws of Oregon were in force in Alaska at the time of
the attachments. 23 Stat. 24, c. 53. The provision for attachments
was as follows:
"A writ of attachment shall be issued by the clerk of the court
in which the action is pending whenever the plaintiff or anyone in
his behalf shall make an affidavit showing:"
"1. That the defendant is indebted to the plaintiff (specifying
the amount of such indebtedness over and above all legal set-offs
or counterclaims) upon a contract."
1 Hill's Code, Oregon, ed. 1887, § 145.
It is contended that these provisions were not complied
Page 181 U. S. 564
and the attachments were therefore void, and, they being void,
there was no foundation for the judgments. This Court has ruled
already as to that contention in the case of Matthews v.
Densmore, 109 U. S. 216
other cases. In Matthews v. Densmore,
the claim of a
defect in the affidavit invalidating the attachment was directly
passed on, and of the attachment it was said:
"It may be voidable. It may be avoided by proper proceedings in
that court. But when in the hands of the officer who is bound to
obey it, with the seal of the court and everything else on its face
to give it validity, if he did obey it, and is guilty of no error
in this act of obedience, it must stand as his sufficient
protection for that act in all other courts."
(2) The answer of the defendant alleged that the writs of
attachment in the actions mentioned were placed in his hands for
service, and by virtue of them, he
"duly levied upon all the goods, wares, and merchandise set
forth in the plaintiff's complaint herein, and ever since that time
has held and now holds the same as said United States marshal under
and by virtue of said writs."
His returns upon the writs were as follows:
"I hereby certify that I have executed the within writ of
attachment by levying upon the personal property of the
within-named defendant, to-wit: all of the goods, wares, and
merchandise situated in the one-story building one door south of B.
M. Behrends' bank, on Seward Street between Second and Third
Streets in the Town of Juneau, District of Alaska, by posting a
copy of said writ of attachment on the front door of said building;
also, eleven (11) cases of boots and shoes consigned to the
within-named defendant, Joseph Levy, situated in the warehouses of
the Pacific Coast Steamship Company, by delivering a notice and
copy of the within writ of attachment on H. F. Robinson, the agent
of said Pacific Coast Steamship Company, and have all of the
above-described personal property of the above-named defendant now
in my possession."
"Dated at Juneau, Alaska, May 14, 1898."
It will be observed that the returns are somewhat vague as to
whose possession the property was in at the time of levy. If
Page 181 U. S. 565
the fact can be said to have been put in issue by the pleadings
the only evidence in the case was given by the plaintiff as
"About the 10th day of May 1898, I was the owner and in the
possession of a stock of goods, wares, and merchandise in Juneau,
Alaska. The goods were in the building on Seward Street, next to B.
M. Behrends. On or about that date, the United States deputy
marshal, W. D. Grant, came to the store and took the goods out of
my possession. I declined to surrender possession, but the deputy
marshal forcibly put me out of the building, took the key out of my
pocket, and locked the front door."
The truth of this was not questioned, and it must be accepted as
established that, at the time of the levy, the property was in the
possession of the plaintiff. What is the effect of it? In other
words, was the levy made, as described in the return of the
The statute provided as follows:
"The sheriff to whom the writ is directed and delivered shall
execute the same without delay as follows: . . ."
"2. Personal property, capable of manual delivery to the
sheriff, and not in the possession of a third person, shall be
attached by taking it into his custody."
"3. Other personal property shall be attached by leaving a
certified copy of the writ, and a notice specifying the property
attached, with the person having the possession of the same."
1 Hill's Code, Oregon ed. 1887, § 149, subs. 2 and 3.
These provisions were passed upon in Spaulding v.
6 Or. 208. The facts of the case as stated by the
court were as follows:
"Litchenthaler and Simpson were, on the 9th of November, 1875,
the owners of a certain mare, the property in dispute, upon which
they executed a chattel mortgage of that date in favor of the
Granger Market Company. This mortgage was duly recorded, and
remained unsatisfied at the commencement of this action.
Subsequently Litchenthaler and Simpson delivered the mare to the
plaintiff upon a second chattel mortgage
Page 181 U. S. 566
by them in his favor, executed subsequently to the one in favor
of the Granger Market Company."
"In March, 1876, one James Welch obtained a judgment against the
Granger Market Company, upon which an execution was issued, and
placed in the hands of Kennedy, the appellant, who was a constable.
Kennedy, under this execution, levied, as it is claimed, upon the
mare as the property of the Granger Market Company by taking her
from the possession of one Stemme, the bailee of the plaintiff
Spaulding. Spaulding brought this action to recover
The court said:
"It was the object of the levy to subject the right of the
Granger Market Company to execution, and in order to do so, and by
a levy and sale transfer this right to an execution purchaser, the
officer must pursue the course pointed out by the statute."
And, after quoting the statute, said further:
"This property not being in the possession of the Granger Market
Company at the time of the levy, the officer could not, by virtue
of his writ, lawfully take it from the possession of a third person
in whose possession he found it, and he committed a trespass in so
doing. It is claimed that this statute is simply intended to
protect those in possession of property who may have a lien on it
by virtue of which they may be entitled to redeem it. This may be
the object of the statute. The statute provides that such persons,
when summoned as garnishees, shall answer and show by what title
they hold the property; but the sheriff, when he finds the property
which he supposes belongs to the judgment debtor in the possession
of third persons, has no right to determine the right of that
possession, except in the manner provided by law."
The same principle was expressed in Lewis v. Birdsey,
19 Or. 164, and in Batchellor v. Richardson,
The cases cited by defendant in error are not to the contrary.
Page v. Grant,
9 Or. 116, was a direct attack, after
execution returned unsatisfied, upon a sale claimed to be
fraudulent. Lyons v. Leahy,
15 Or. 8, and Philbrick v.
Page 181 U. S. 567
15 Or. 15, and Crawford v. Beard,
12 Or. 447, were
creditor's bills brought to set aside deeds for real estate after
return of execution unsatisfied. It follows that the levy was
invalid and could constitute no defense to the defendant, and the
jury should have been so instructed.
(2) The error assigned on instructions not disposed of by the
above reasoning it is not necessary to consider. We may say,
however, that we have grave doubts of their correctness.
Judgment reversed, with costs, and cause remanded, with
directions to grant a new trial.