Chapman v. Smith, 57 U.S. 114 (1853)

U.S. Supreme Court

Chapman v. Smith, 57 U.S. 16 How. 114 114 (1853) Chapman v. Smith

57 U.S. (16 How.) 114

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE MIDDLE DISTRICT OF ALABAMA

Syllabus

By the laws of Alabama, where property is taken in execution, if the sheriff does not make the money, the plaintiff is allowed to suggest to the court that the money might have been made with due diligence, and thereupon the court is directed to frame an issue in order to try the fact.

In a suit upon a sheriff's bond, where the plea was that this proceeding had been resorted to by the plaintiff and a verdict found for the sheriff, a replication to this plea alleging that the property in question in that trial was not the same property mentioned in the breach assigned to the declaration, was a bad replication and demurrable.

Where the sheriff pleaded that the property which he had taken in execution was not the property of the defendant, against whom he had process, and the plaintiff demurred to this plea, the demurrer was properly overruled.

This was a suit upon a sheriff's bond. Alexander Smith was the sheriff, and the other defendants in error his sureties. The Leavitts were citizens of New York.

Page 57 U. S. 115

It was altogether a case of special pleading. There were fourteen breaches assigned in the declaration, ten pleas, with replications and demurrers on both sides. There were demurrers to the breaches, demurrers to the pleas, and demurrers to the replications, upon which sometimes one party obtained a judgment, and sometimes the other, and whilst all this was going on between the principals, the sureties kept up an outside war of their own by pleading the statute of limitations, which led to a succession of other pleadings. The record contained thirty-eight printed pages, which were occupied exclusively with pleas, replications, demurrers, joinders, and judgments upon them, and finally the case came up to this Court upon two judgments upon demurrers. In giving a narrative of all this, the controversy between the plaintiffs and the sureties will be detached from the tangled history and left out of this report.

The facts of the case upon which this system of pleading arose were these:

On the 28th of September, 1839, John W. and Rufus Leavitt obtained a judgment against Jeremiah M. Frion in the Circuit Court of the County of Coosa, Alabama, for $3,472.

On the 17th of the ensuing October, a writ of fieri facias was issued and placed, on the 24th, in the hands of Alexander Smith, the sheriff.

The return day of this writ was the fourth Monday in March, 1840, when the sheriff returned that he had levied on the 1st February, 1840, upon dry goods, hardware, carriages, &c.

On some day after this, but when the record did not show, the time of the sheriff expired, and on the 12th of September, 1840, the sheriff, by leave of the said circuit court first had and obtained, altered or amended his said return on said writ by adding thereto the following words and figures, to-wit:

"The above goods have been claimed by A. B. Dawson and Samuel Frion, assignees of J. M. Frion, defendant in execution, and claim bond given to William J. Campbell now sheriff, and my successor in office, September 12, 1840."

"A. SMITH, late Sheriff"

It is now necessary, before the next step in the narrative is referred to, to mention two statutes of Alabama which are so minutely stated in the opinion of the Court that they may be succinctly mentioned here. One is that if a person other than the debtor claims the property levied upon, he may make affidavit that he is the owner and give bond that it shall be forthcoming, whereupon the sheriff shall suspend the sale. The other is that the plaintiff in the suit may make a suggestion to the next court that the money could have been made by the sheriff by the exercise of due diligence, whereupon the court shall order

Page 57 U. S. 116

an issue to be framed to determine the fact whether or not due diligence was used. We now proceed with the narrative.

At the April term, 1843, of the Circuit Court for the County of Coosa, John W. and Rufus Leavitt made a suggestion, in conformity with the above statute, that the money might have been made by the sheriff if he had used due diligence, and thereupon an issue was made up between them and the sheriff, who denied the allegation.

At September term, 1847, this issue was tried and resulted in a verdict by a jury in favor of the sheriff.

In October, 1848, J. W. and R. Leavitt, using the name of the governor, to whom the bond was given, brought this suit against the sheriff and his sureties, upon the official bond in the District Court of the United States for the Middle District of Alabama.

The declaration assigned fourteen breaches.

First. That the Leavitts, at the Fall term of 1839 of the Circuit Court of Coosa County, recovered judgment against one Frion for $3,472; that a fi. fa. issued thereon and came to the hands of the said Smith; that although there were goods &c., of the said Frion out of which the said judgment might have been levied and of which the said Smith had notice, yet he neglected and refused to levy &c.

Second. That Smith did seize certain goods, and might have levied the money by sale, and neglected to sell.

Third. That he seized goods which he might have sold, but did not, and returned the levy on the goods.

Fourth. That he seized, might have sold, but did not; returned that he had levied. Afterwards, on 12th September, 1840, amended his return by adding that the goods had been claimed &c., averring amended return to be false because no claim was made before the return day of the writ.

Fifth. Same as last, except that it averred that the amended return was false because no claim on oath was made.

Sixth. Same as fourth, except averring that no bond was given by claimants.

Seventh. That the amended return was false because no person claimed the property and made oath, and no person claimed the same and gave bond according to the statute.

Eighth. Seizure, claim, duty of sheriff to prepare bond, but did not.

Ninth. Seizure, claim, no bond taken, goods delivered to claimants and wasted by them.

Tenth. Seizure, claim, no bond taken, goods delivered to claimants and by them consumed and wasted, and no part of

Page 57 U. S. 117

the goods delivered to the Leavitts, nor any part of the damages paid to them.

Eleventh. Same except that it is alleged that Smith suffered goods to be wasted &c.

Twelfth. Same as last.

Thirteenth. Seizure, claim, bond, and, by negligence of Smith, bond lost.

Fourteenth. Same as last except that the bond taken was not returned.

Spring Term 1850. The defendants demurred to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches.

To the 1st, 2d, and 3d breaches the defendants pleaded that the said Leavitts, in the Circuit Court of Coosa County, according to the statute of Alabama, suggested the issuing of the fi. fa.; that it came to the hands of Smith to be executed; that he might by due diligence have made the money and did not; that an issue was made up whether Smith by due diligence could have made the money &c.; that the issue was tried and found for Smith, for whom judgment passed &c., and the defendants aver that the writ of execution mentioned in the breaches and that mentioned in the suggestion were one and the same, and that the alleged neglects and defaults mentioned in both were one and the same, and not different.

The plaintiff filed a joinder in the demurrer to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches.

To the three pleas put in by the defendants to the first, second, and third breach, the plaintiff put in a replication that the defaults in the said pleas mentioned were not the same defaults mentioned in the breaches.

The defendants demurred to this replication, and the plaintiff joined in the demurrers.

At the Fall term of 1850, the court sustained the defendants' demurrer to the 8th and 13th breaches of the plaintiff and overruled it as to the 4th, 5th, 6th, 7th, 9th, 10th, 11th, 12th, and 14th breaches, and that the defendants have leave to plead to the last-named breaches.

The demurrer of the defendants to the replication of the plaintiff to the plea of the defendants to the 1st, 2d, and 3d breaches, was sustained. And on motion, the plaintiff had leave to amend the 8th and 13th breaches of the declaration.

December Term 1849. The demurrer of the defendants to some of the breaches, having been overruled, they now filed a plea to the 4th, 5th, 6th, and 7th breaches. They set forth the suggestion to the court, the issue, trial, and verdict. They aver

Page 57 U. S. 118

that upon that trial the truth of the amended return was brought up, and that the verdict found the amended return to be a true return, and that this is the same as the amended return mentioned in the breaches.

And the defendant also filed pleas to the 9th, 10th, 11th, 12th, and 14th breaches, their demurrers to which had been overruled. The first plea, called the sixth in number from the beginning, set forth, that after the levy, the goods were claimed by one A. B. Dawson, and one Samuel Frion, as assignees of J. M. Frion; that an affidavit was made by Dawson; that Dawson and Samuel Frion gave a bond; that the affidavit and bond were duly returned to court; that the suit of the Leavitts against the claimants was put upon the docket; that at the Fall term of 1840, the plaintiffs refused farther to prosecute their levy; whereupon the court ordered the goods to be restored to the claimants.

Seventh plea -- the same breaches, same in substance nearly as preceding.

Eight plea -- nearly same.

Ninth. That the property taken in execution was not the property of Jeremiah M. Frion, the defendant in the suit.

Tenth -- not guilty of the several breaches.

The plaintiff demurred to the 4th, 6th, 7th, 8th, 9th, and 10th pleas.

Spring Term 1851. The plaintiff's demurrer to the 4th, 8th, 9th, and 10th pleas was overruled; the demurrer to the 7th plea was sustained; the demurrer to the 6th plea, as a plea to the 9th, 10th, 11th, and 12th breaches was sustained; the demurrer to said 6th plea as a plea to the 14th breach was overruled.

The plaintiff had leave to reply to the pleas, the demurrer to which was overruled, and the defendants had leave to amend the pleas, the demurrer to which was sustained.

May Term 1851. The defendants filed an amended 7th plea to the 9th, 10th, 11th, and 12th breaches in the declaration. The plea averred that before the return day of the execution, the goods were claimed by Dawson and Frion, and an affidavit made by Dawson; that the execution and claim were returned to the court, and a suit docketed between the Leavitts as plaintiffs, and Dawson and Frion as defendants; that at the fall term of 1840, the Leavitts refused to make up an issue; that the court thereupon ordered the goods to be restored to the claimants; that they were accordingly restored.

The plaintiffs demurred to this amended plea, which demurrer was overruled, and then the plaintiffs filed a replication.

The replication averred that after the return day of the writ, to-wit, on the second day of the term, Dawson made his affidavit

Page 57 U. S. 119

that the goods were not the property of Jeremiah M. Frion, but were the property of himself and Samuel Frion; that on that day, Dawson and Samuel Frion, together with one Graham, executed their bond to the plaintiffs in the sum of $3,479, conditioned to pay all damages that the jury might assess against the obligors; that they also executed another bond to one William J. Campbell for a like sum with a like condition; that before that day, Smith had ceased to be sheriff, and that Campbell was the sheriff; that the plaintiffs moved the court to dismiss the claim of Dawson and Frion on the ground of the insufficiency of the claim bonds, which motion was overruled; that at the Fall term, a judgment of nonsuit was rendered against the plaintiffs for declining to make up an issue; that the judgment thus rendered against them referred to the claim bonds above described and not in any claim suit commenced by said affidavit described in the said amended 7th plea of defendant, nor in any other or different claim suit; that the affidavit described in said 7th amended plea was never returned to said court, either before or after the return of said writ of fieri facias; that the plaintiff never knew or had any notice until the year 1847, that said last-mentioned affidavit had been made; that the said goods levied upon, as aforesaid, were delivered to the said Dawson and Samuel, by Campbell in obedience to the said last-mentioned judgment or order of said court, without this that they were delivered to them by the said Alexander in obedience to any other judgment or order of said court; that the plaintiffs prosecuted their writ of error to the supreme court of said state to reverse said last-mentioned judgment, and that the said judgment was, by said supreme court at January term, 1842, reversed and remanded to said circuit court; that at the Fall term of said circuit court for 1842, the said claim put in as aforesaid by said Dawson and Samuel, was, by the consideration and judgment of said court, dismissed because of the insufficiency of the said last-mentioned claim bonds, the said Dawson and Samuel declining and refusing to execute other claim bond or bonds as they were required to do by the said circuit court; and plaintiff avers that the said last-mentioned judgment remains in full force, not reversed, annulled, or set aside in any way. All which the said plaintiff is ready to verify, wherefore he prays judgment, and his debt and damages by him sustained, by reason of the facts set out in said 9th, 10th, 11th, and 12th breaches, to be adjudged to him.

December Term 1851. The defendants demurred to this replication of the plaintiff to the seventh amended plea.

The court then pronounced its final judgment, as follows:

"This day came the parties, by their attorneys, and thereupon

Page 57 U. S. 120

came or to be heard the demurrer of the plaintiff to the amended 7th plea of the defendants to the 9th, 10th, 11th, and 12th, breaches of the plaintiffs, and after argument had, it seems to the court that the said plea is sufficient in law &c.; it is therefore considered by the court that the said demurrer be overruled. And thereupon the plaintiff filed his replication to the said amended 7th plea, and the defendants filed their demurrer to the said replication, and, after argument, it seems to the court that the said replication is insufficient &c.; it is therefore considered by the court that the said demurrer be sustained, and that the said defendants go hence without day &c., and recover of the said John W. and Rufus Leavitt, the persons for whose use this suit is brought, their costs in this behalf expended, for which execution may issue &c."

The plaintiffs sued out a writ of error, and brought the case up to this Court. It came up upon the correctness of the judgment of the court below in sustaining the defendant's demurrer to the replication of the plaintiff to the plea upon the 1st, 2d, and 3d breaches, and also in sustaining the demurrer of the defendants to plaintiff's replication to the 7th amended plea.

Page 57 U. S. 130

MR. JUSTICE NELSON delivered the opinion of the Court.

The suit was brought upon an official bond given by Alexander Smith, as sheriff of Coosa County, and his sureties, conditioned that he would well and truly perform all and singular the duties of his office as required by the laws of the state.

The declaration sets out a judgment, recovered by J. W. and B. Leavitt at the Fall term of 1839, in the Circuit Court of the Second Circuit of the State of Alabama, against Jeremiah M. Frion for the sum of $3,472; also an execution upon the same issued to the said Smith as sheriff.

Fourteen breaches of the condition of the bond are assigned for the purpose of charging the defendant and his sureties with the payment of the judgment.

In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two provisions in the statutes of Alabama that have a material bearing on the subject. One is that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner, and thereupon it shall be the duty of the sheriff to postpone the sale until the next term of the court; and such court shall require the parties concerned to make up an issue, under such rules as it may adopt, so as to try the right of property before a jury at the same term, and the sheriff shall make a return on the execution accordingly, provided the person claiming such property, or his attorney, shall give a bond to the sheriff with surety equal to the amount of the execution conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against him in case it should appear that such claim was made for the purpose of delay. Clay's Dig. 211, § 52.

It is further provided that it shall be the duty of the sheriff to return the property levied on to the person out of whose possession it was taken upon such person entering into a bond with surety to the plaintiff in the execution in double the amount of the debt and costs, conditioned for delivery of the property to the sheriff whenever the claim of property so made shall be determined by the court. Ibid.

It was subsequently provided that one bond might be taken with a condition embracing substantially the matters contained in the two above mentioned. Id., 213, § 62.

Page 57 U. S. 131

The other provision is that whenever the sheriff shall fail to make the money on the execution on or before the first day of the term of the court before which the execution is returnable, the plaintiff or his attorney shall suggest to the court that the money could have been made by the sheriff with due diligence, and it shall be the duty of the court forthwith to cause an issue to be made up to try the fact, and if it shall be found by the jury that the money could have been made with due diligence, judgment shall be rendered against the sheriff and his sureties or any or either of them for the money specified in the execution, together with ten percentum on the amount. Id., 213, § 85.

There is also a similar provision in the case of the suggestion of a false return on the execution by the sheriff. Id., 218, § 84.

We have said there are fourteen breaches assigned of the condition of the bond in question in the declaration.

The first is that there were divers goods and chattels, lands and tenements of Frion, the defendant in the execution within its lifetime, out of which the sheriff could have levied the amount of the judgment, but that he had neglected to levy and collect the same.

Second and third, that he had levied upon sufficient goods and chattels of the defendant, but had neglected to sell the same and collect the amount.

The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth, that the return made upon the execution -- namely that the goods levied on had been claimed by A. B. Dawson and Samuel Frion, assignees of J. W. Frion, defendant in the execution, and claim bond given to W. J. Campbell now sheriff, and my successor in office -- was false, setting out in various of these breaches the grounds of the falsity in the return, namely either that no claim had been made to the property by Dawson and Frion or, if made, no affidavit, as required by the statute, had been furnished to the sheriff or no bond had been required, or given, or that the proper affidavit had been made, but no bond given according to the requirement of the statute.

The thirteenth and fourteenth breaches admit an affidavit and bond according to the statute, but charge that the claim bond was lost by the negligence of the sheriff, and was not returned to the court with the execution at the return of the writ.

The defendants plead to the first, second, and third breaches that at the April term of the court held in and for the County of Coosa in 1840, the plaintiffs in the execution suggested to the court, according to the statute in such cases made and provided, after setting out the execution, and issuing of it to the

Page 57 U. S. 132

sheriff, and return of it without having levied the money thereon, that the same might have been collected, if due diligence had been used by the sheriff; that thereupon an issue was formed upon this suggestion; and that upon the trial such proceedings were had that the jury found the same in favor of the defendants. The plea further avers that the alleged neglects, defaults and breaches of duty in the first, second, and third breaches assigned, and in said suggestion are the same, and not different.

To this plea the plaintiffs replied that the matters, neglects, and defaults in the said three breaches assigned in the declaration were not the same identical matters, neglects, and defaults as in said plea mentioned, and for and in respect to which the said judgment in said plea mentioned was recovered in manner and form as set forth.

To this replication there was a demurrer and joinder, and judgment for the defendants.

The defendants also plead to all the breaches severally except the first, that the goods and chattels levied on as stated in said breaches at the time of the said levy, and at the time said execution came to the hands of the said Smith, sheriff, as aforesaid, were not the property of the said Jeremiah M. Frion, the defendant in the execution, and were not liable to be taken for the payment or satisfaction of the said judgment.

There was a demurrer to this plea, and joinder, and judgment for the defendants.

These two pleas cover all the breaches assigned in the declaration, and if they furnished answers to them, the judgment for the defendants in the court below should be sustained.

The first three breaches, as we have seen, were first that there were goods of the defendant in the execution, and of which the sheriff could have levied the money, but that not regarding his duty, he neglected, and refused so to do. Second and third, that he did make a levy upon the goods, but neglected and refused to sell the same.

The plea sets up that the plaintiffs made a suggestion under the statute to the court, at the return of the execution, that the sheriff could have collected the money thereon if he had exercised due diligence in the execution of the writ, and upon this suggestion or allegation an issue was formed between the parties and tried by a jury, who found a verdict for the defendants upon which a judgment was rendered.

The replication to this plea is that the matters, neglects, and defaults in the said three breaches in the declaration were not the same matters, neglects, and defaults in the said plea mentioned, and in respect to which the judgment was recovered.

Page 57 U. S. 133

We think the replication is bad on the ground that it raises an issue of law, rather than one of fact. The matters in all three of the breaches were necessarily involved in the question of due and proper diligence on the part of the sheriff in the execution of the fi. fa. The omission to levy upon the goods, or to sell after the levy, fell directly within the issue and inquiry in that proceeding under the statute, and we are bound to presume were the subject of examination before the court and jury and were passed upon by them. Where the facts in issue appear upon the record either expressly or by necessary intendment, it is not competent to contradict them, as this would be contradicting the record itself. The judgment is conclusive upon these facts between the same parties or privies whenever properly pleaded. If the matters involved in the issue do not appear upon the record, then it is competent to ascertain them by proof aliunde. 2 Phillips Ev. 15, 20, 21; C. & H. Notes 13; Note 14; also 163-164 and cases.

Here we cannot help seeing that the matters sought to be put in issue by the replication are those necessarily involved in the former trial, and to uphold it would be to permit the same facts to be agitated over again. Certainly neglect to levy the money on the execution out of the defendant's goods within the sheriff's bailiwick or neglect to sell them and make the money after the levy are facts bearing directly on the former issue, and one criterion for trying whether the matters or cause of action be the same as in the former suit is that the same evidence will sustain both actions. 2 Phillips Ev. 16; C. & H. Notes 19, note 17.

The issue upon the suggestion that the sheriff could have levied the money on the execution with the exercise of due diligence is a very broad one. It is held, by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence, and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But if the defense consists of new matter or matters of avoidance, he must then plead it. 3 Ala. 28.

It is difficult to conceive of a broader issue for the purpose of charging this officer with neglect or default in the course of his duty under the execution.

Then as to the plea that the goods levied on were not the goods of the defendant in the execution, and not liable to the satisfaction of the judgment. This the demurrer admits. Of course the sheriff had no authority to make the levy, and stood responsible himself to the owner as a trespasser as soon as the seizure took place. In the face of this admission on the record, it is impossible to hold him liable for the value of the goods.

Page 57 U. S. 134

The plea answers the material allegation in each of the assignments of breaches, and without which the assignment would be substantially defective -- namely the seizure of the goods on the execution. The allegations as to no claim's having been made to the property by third persons and no affidavit taken, or bond given, or if given that it was lost, are matters depending upon the levy. If that is denied or avoided, the several breaches are fully answered.

Now the seizure of the goods of a third person on the execution does not change the title or make them the goods of the defendant on the execution. The only effect is if after this the sheriff returns the execution nulla bona, the burden is thrown upon him in a suit for a false return to show that the goods were not the defendant's, and therefore not liable to the execution. Magne v. Seymour, 5 Wend. 309; 1 B. & C. 514.

The same principle was held in Mason v. Watts, 7 Ala. 703. That was a case arising out of a suggestion against the sheriff and his sureties, under the statute to which we have referred and in a case where the goods had been seized and a return upon the execution accordingly. The suggestion was met that the goods were not the property of the defendant in the execution.

The court said that the sheriff may excuse himself by showing that the defendant in the execution had no property in the goods levied upon. That the reason for this is that the sheriff, by levying upon the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of holding the goods after he has ascertained their true ownership. Another observation in that case is applicable here. The court said it may be, if a loss results to the plaintiff by being cast in costs, or otherwise, from the neglect of the sheriff to retain the affidavit of claim, or bond executed by the claimant, he may be liable in an action on the case, but not for the value of the property levied on. Although the suit on the bond in this case, according to the practice in the courts of Alabama, may be regarded as a substitute for this action, still no such ground or cause of action is set out in any of the assignments of breaches, and of course no opportunity given to answer it. We are satisfied, therefore, that the plea is a full answer to all the breaches assigned to which it refers, and has been pleaded.

There are many other pleas, replications, and issues of law raised upon them arising out of the useless number of breaches assigned in the declaration, and which have very much tangled and complicated the pleadings in the record, but we do not propose to examine or express any opinion upon them, as upon the whole record we see a complete defense to all the

Page 57 U. S. 135

causes of action set forth in the declaration, it would be an idle and profitless waste of time to enter upon their examination, and besides, whatever might be our conclusions, they would not vary the result. Stephens' Pl. 153, 176.

The judgment of the court below is affirmed.

Order

This cause came on to be heard on the transcript of the record, from the District Court of the United States for the Middle District of Alabama, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said district court in this cause be, and the same is hereby, affirmed with costs.