WIBB ·· JEFFERIL
641
WISE (Cff'C'Il«t
et aI.
t1. JEFFERIS.
of Appeals, Ninth Oircuit. July 18, 1891.)
I. &.
Wa01'l'GJ'OL ATTACHMENT-REIllEDIllB-REPLBVIN.
One whole property has been wrongfully seized under a writ of attachment, to which he is a stranger, is not confined to an action on the official bond of the sheriff, but may.bring an action of replevin agalnst him individually. In an action against a sherit! to recover goods, or the value thereof, taken by him under a writ of attachment from the possession of a stranger to the writ, the faot that he has subsequently turned them over to a receiver, in accordance with an order of court made in a third suit, to which plaintit! was not a party, is immaterial, since his liability arose at the time of wrongful seizure, and was not a1feoted by the subsequent disposition of the goods.
B.um-DEFENSES.
&.
BlllE-PLEADINGS AND EVIDENCE.
In replev!n against a sherift for the wrongful attachment of goods held by plaintift's agent under a bill of sale given by the person whom the attaohment was directed, as seourity for debt, the sherit! cannot prove that the bill of sale was made for the purpose of defrauding other creditors, when the only fraud averred In the answer was that the agent used the bill of sale, after its exeoution, falsely and fraudulently, for the purpose of gaining a secret advantage over other oreditors of the seller.
SAME-DEFENSES.
I.
If the allegation of fraud by the agent were admitted to be true, the sherift could not' justify under the writ, however regular, without showing that he had first made a tender of the sum due from the common debtor, as required bJ' Comp. St. Mont. 5 1546.
SAME-PLEA.DING-AMENDMBNT-NEW CAUSE OF AOTIOlll.
In replevin in a federal oourt defendant pleaded in justification that he was a sherift, and took the goods under an attachment issued by a state court. At the close of vlaintifts' evidence, defendant moved the court to direota verdict for him. This was denied, and plaintifts thereupon obtained leave to amend their replication so as to allege that the suit in whloh the attaohment issued was determined, the judgment satisfied, and the property disposed of long prior to the commencement of the present suit; and proofs were thereafter given by both parties. Held, that the amendment did not set up a new cause of aotion, but was merely an additional replication to the new matter pleaded in the answer, and its allowance was within the court's discretion.
In Error to the Circuit Court of the United States for the District of Montana. At Law. Action by Maurice Wise and others against Charles M. Jefferis to recover certain goods, or the value thereof. Verdict and judgment for plaintiffs. Defendant brings error. Affirmed. Toole &; WaUace and W. S. Wood, for plaintiff in error. OuUen, Sanders &; Shelton, F. M. Dudley, and E. W. McGraw, for defendants in error. Before GILBERT, Circuit Judge, and DEADY and HAWLEY, District Judges. HAWLEY, District Judge. This suit was commenced in the United States circuit court of Montana, on the 22d day of October, 1890, for the recovery of the possession of certain goods and personal property, or for the value thereof in case a delivery could not be had. The cause ""as tried before a jury, and a verdict found in favor of the plaintiffs. It appears from the record that on the 18th of March, 1889, and prior thereto, J. E. Landsman, as the &uccessor of Landsman & Co., was con.v.51F.no.10-41
duoting and carrying on the business of a clothing store in Helena, Mont.; that Landsman &,Co. indebted tothe First National Bank of Helena in the sum or'ahout $8,0'00, also indebted to the plaintiffs in this suit. Wise et al., designated as Chicago creditors, in the sum of about $7,700, and indebted to divers other creditors, in the aggregate ,toe $19,000; the morning of the 18th of Maf6het creditors and plaintiffs Turner & Burleigh procured from said Landsman a bill of saM ofall the merchandise, store fixtbres, &,01;)..) Jor a coni'ideration, as expressed iff the $12,500; thaNhe bill of sale was, by agreement of acted as the agent of the plaintiffs in! thissuritj"that said Oliver tOok possession of said goods and store for said parties; that in the forenoon of' sidd day CharlesM. Jefferis, de;; fendaQ<t !hereill, 'as sheriff of Lewis and Clarke county, Mont.) levied, Jilonq possession ofsaid.·stqclt of goods under and, by virtue, of, S' oertainwrit of attachment, issued out.of the district court and'plarke Mont., in a suit brought by the First National Bank of Helena against J. E. Landsman & Co.; that at of this lEW] the from Jefferis the posseS" which was refused;tbat the return upon said writ of lfttdci*nent; as made by Jefferis, states'that he attached the property" in the possession of William Oliver." ,During the trial of the case it lip;)' Jleareddfrom the evidence tbat the bill ofsale was given to Oliver as seciitiiy}orthe ,indebt""dne$s due' from 'La.ndsmau & Co. to the Chicago the sllIDof37,741.81-,. and the indebtedness due to &'Bdrleigh, 'tbeotherpiaintiffs, jn tbesum of $108.85 or thereabouts, and it was treated throughout thetl'iahlSa chattel mortgage. " ,weJie., tll-k.enat different stages of the trial, and there are several specific assignments of error, some of which relate to, ap? ure the and condition of the pleadi?gs, andbthers t(j the mstttrctIonsandrulIngs of the court. The pleadmgs of both parties were, at different timel!,by leave of the court, amended in several particlliars. ":J:n'{heoriginalanswer .J efferis alleged that· all his eqlely in his official' capacity as sheriff, and in the performance ofdiities l 'enjoined'Opqh him by law; that he levied upon goods underthe writ of attachment in the suit anp took of the Fitst National' 'BatiK of Helena against Landsman & Co., and retai,ned thereof until the 20th of April, 1,889, "when he 'Yas superseded 'inpossesSlbn thereof byonc Marcus Lissner, who was duly appointed a receiver, with full power and authority to receive, take, hold, and dispose of the said goods in a certain suit and action wherein :Max'Sternbefg "'lfS"pltiititiff lind' J: E. Landsman & Co. were defendants." Upon the trial JefferiS',Offered the c0I11plaintand attachment in said suit, the petition of>plaih'tHjiSternberg, the order of the judge appointing the l'l3ceiver,and theoa'th and bond' oithe receiver. Theadmission of these papel'S upon the ground that, if a portion dfthe record in tbe'ca.$ewas to be' introduced, the entire record should go in; and forthefurfher reason thattbe papers offered were irrelevant
· WIsEv. JEFFERIs.
643
under the issues, which obJection was properiy sustained by the court ". , " " " , If the sheriff wrongfully seized the property in the first instance, liability was incurred, and he could not relieve hHnse1f from suoh liability by proof that he subsequently delivered the property to other person upon the order of the court made in the 8uitto which plaintiffs were notparties. "The action is for a trespass, and the wrongdoer cannot avoid liability by handing the fruits of his trespass or wrong over to another." Duke v. Vincent, 29 Iowa" 309. The plaintiffs, having acquired a right of action, could not beheld to have lost it under such circumstances, and the defendant was not discharged from any respollSibility which he had incurred. Lit'ermore v. Northrup, 44 N. Y. 112. , At the close of thetestiriiony upon the part of plaintiffs, the defendant, Jefferis, moved for a nonsuit, which he subsequently, by leave ofthe court, changed to a motionto instruct the jury to find a verdict for defendant. This motion was denied. Thereupon plaintiffs obtained leave of the court to ,file an amendment to their replication todelendant's answer. This amendment, among other things, alleged that the had levied upon the goods in question under the writ of attachment issued in the .sliit of the First National Bank of Helena against Landsman & Co., and that said suit had been terminated and completed by therendition of judgment therein, and that said judgment had been fully satisfied and discharged long prior to the commei1cement of this suit, and that said property, having been disposed of, was no longer held under or by virtue of any process of the state court, and that all interest which said court ever had in and to said property had long since ceased and terminated. The contention of Jefferis is that the court erred in refusing to grant his motion, because, as the e\'idence and pleadings then stood, it appeared that the goods were in possession of the state court, and therefore it is argued that tbe United States circuit court had no jurisdiction of the case. The record does not purport to contain the evidence offered by tiff, and, in the absence of such a statement, it would be our duty to presume that there was eviden'ce sufficient to sustain the action of the court. It is, however, unnecessary to discu'3s that question, as weare of opinion that the court did not err in allowing the amendment to the r,eplication, setting upihe true state of facts concerning the possession and disposition of the goods; and, even if the court erred iQ denying the motion, the error was cured by allowing the amendment, and by subsequent proofs offered by both parties. It is always within the discretion of the court to allow amenuments to the pleadings, at any stage of the trial, so as to conform to the truth. But it is contended by J efi'eris that the allowance of the amendment changed the cause of action, and worked.a vital injustice to him, in this: that the caUSe of action as originally brought was against him as an individual, and that the amendment introduced a neW ca.use of action against him as all officer; and reference is made to section 1546, Compo St. Mont., which provides that" personal property mortgaged may be
FEDERAL REPORTER,
vol. 51.
taken on attachment or issued. the suit of a creditor of the. but, before the so taken, the officer must payor tender t() the mortgagee the amount of the mortgage, or inust deposit the amount with the county treasurer of the county in which the mortgage ie'fUed, payable to the order of the mortgagee." Counsel assume the facts to be that Jefferis, before levying on the property, tendered plaintiffs the sum due them, and thereupon claim that the seizure was the statute, and that the only remedy which plaintiffs lawful, had was an: action against Jefferis on his official bond, as sheriff, and rely upon Wood v. Frank8, 56 CaL 218, in support of their views. It is a sufficient answer to the argument of counsel upon this point to say (1) that there was no proof in the record that any tender was made; (2) that the amendment did not introduce any new or different cause of action. It was simply 8;uaddltionalreplication to the new matter set up in defendant's answer,'for .thepurpose of allowing evidence to be introduced showing that the goods and personal property had been of, and were not, at the time of the commencement of this action, in the qu::,;tody of, or under the control of, the state court, or that defendant of any process of the state court. held the property by Plaintiffs were not confined to the remedy afforded by an action upon facts of this case, as they appear the official bond ofJefferi,sr in the record, they were entitled to .recover in the form of action chosen by them, although they J;riight have obtained their rights in another and different form of action. LammOn v. Feusier, 111 U. S. 19, 4 Sup. Ct. 286. The defendant,' Jefferis, having levied upon and taken the property of a stranger to the writ, if unable to justify his taking, might be sued therefor in any form of action which the party whose rights had been invaded might elect to pursue. 2 Freem. Ex'ns, § 272, alid authorities there cited. Under the law of Montana, an.action of claim and delivery or trover would, lie against a sheriff who wrongfully takes possession of personal property und'er a writ of attachment,-Griswold v. Boley, 1 Mont. 546; Boley Grisu;old, 20 Wall. 486; Sweeney v. Lomme, 2,2 WalL 213,'-:and it has been frequently decided that an action of reple,vin, or of claim and delivery,might be maintained by the mortgagee of personal property an officer who, under a writ of attachment in a suit against the mortgagor,levied upon and took the property from the possessionofthp mortgllgee,-Norris v. McOanna, 29 Fed. Rep. 757; 343, 16 Pac. Rep. 680; Sherman v.F1,ru;h, 71 Rankine v. Greer, 38 Cal. 68, 11 Pac. Rep. 847; Stevenson v. Lord, (Colo. Sup.) 25 Pac. Rep. 313; Merrill v. Denton,· 73 Mich. 628, 41 N. W. Rep. 823; Wood v. Weimar, 104 U. S. 786; Whitney v. Swen8en, 43 Minn. 337,45 N. W. , . Rep',609. . The action of replevin ':Vas formerly brought to test the legality of a distress, and could not be maintained in any other case; but, under the statutes and mor.e modern decisions of the various courts, the action can now any wrongful taking or unlawful detention of the personal goods and property of.another. This action belongs to the same class as trespass, trover, and detinue; the governing principles
WISE V. JEFFERIS.
645
controlling each of these actions being in many respects analogous, but the form of proceeding is in some respects different. The common-law action of replevin is in several states superseded by the action of claim and delivery, which takes its place and is controlled by statutory provisions, embracing some of the essential features of replevin and trover. 'When the personal property has been disposed of, and cannot be reco\'ered, the action of trover would furnish an adequate remedy; but in an action for claim and delivery, as in replevin, when it appears upon the trial that an actual delivery of the goods cannot be had, the court might., especially in cases where no objection is made on this ground, render a judgment only for the value of the goods and damages for the detention thereof, (Morris, Rep. § 774; Boley v. Griswold, supra; McGraw v. Fran!';.. lin, (Wash.) 25 Pac. Rep. 911;) or the court might, as it did in this case. render an alternative judgment, which could be enforced as a money judgment, (Morris, Rep. §§ 509, 772.) At the close of the trial, it appearing that there was a defect in the statutory undertaking for the issuance of the writ of attachment in the suit of the First National Bank of Helena against Landsman & Co., the court charged the jury that the attachment was void, and that Jefferis could not, therefore, justify under it; "that his defense that the mortgage to Oliver was fraudulent * * * as to the creditors for whom he acted fails, and you must not consider any of the evidence upon the point as to whether the mortgage to Oliver for plaintiffs was in fraud of creditors or not." This ruling of the court was in conformity with the decisions of the supreme court of Montana, to the effect that when a sheriff, by" virtue of a writ of attachment or execution, levies upon the property in the possession of, and claimed by, a third person. who is a stranger to the writ, he cannot justify his seizure of the property by attacking the sale to the party in possession as fraudulent against creditors, without showing that all the preliminary proceedings were regular and sufficient to authorize the issuance of the writ. Hootman v. Bray, 3 Mont. 409; Ford v. 6 Mont. 240, 11 Pac. Rep. 669; Marcum v. Coleman, 8 Mont. 196, 19 Pac. Rep. 394; McMast&, 10 Mont. 390, 25 Pac. Rep. 1056. The same principle is announced in the courts of several other states; but it is opposed to the law as applied to the process and officers of the United States court, as held in Matthews v. Densmore, 109 U. S. 216, 3 Sup. Ct. Rep. 126. But, be that as it may, it is our opinion that the action of the court in withdrawing the question of fraud in the sale of the goods by Landsman to Oliver should have been sustained upon the ground that there was no allegation in the pleadings that would have permitted the question of actual fraud to be submitted to the jury. The charge of the court must be construed with reference to the fraud as alleged in the pleadings. There are no averments in any of defendant's answers that the sale of the goods to Oliver was made with the intent to hinder, delay, or defraud creditors. The only averment of actual fraud is that Oliver, after the bill of sale had been executed, used the same fraudulently and falsely, to gain a secret advantage against other cred-
DDERAL
ltEPORTEB;voL 51.
itOl'ltof tl,esaid by insisting and c1aifningthat there wa'sdueto the creditors for whom he was acting the full sum of $12,· 600,-+the amount n:1entioned in the bill of sale; that'the said LandsCo. were not indebted to said creditors in any amount exceeding the sum of $7,74li87;and that said Oliver used, and intended to No use, ·the said bill of sale I'to work a fraud and extort fraud whatever is alleged against'Landsman & Co. The fraud charged relates solely to the fact that Oliver attempted to maJte an improper use of the bill of sale. If the allegation offraud by Oliveris,admitted to be true, the defendant, Jefferis, could not justify under the writ ofattachtn ent, however regular all the ,proceedings might havebeenj·without first I$howing' that a tender was made to Oliver of the amount admitted to be actually due to the creditors for whom Oliver acted prior to, or at the time of, the levy of the writ of attachment. No such proofappears in the record. The verdict ofthe jury fixed the value of the goods at $7,741.87 for the Chicago plaintiffs, and $108.85 for plaintiffs Turner & Burleigh, amounting in all to 37,850.66. It does not i therefore, affirmatively appear that defendant was injured or prejudiced in any manner by the charge of the court withdrawing the question of fraud, as alleged in the pleadings, from the consideration of the jury. We deem it unnecessary to discuss the questions presented in the· other assignments of error. It is enough to say that we have carefully examined the same, aDd find them untenable. The judgment of the circuit court· is affirmed.
BALUl ". WOODWARD
et ale
(CircuU Court, D.Oregon. August 9, 18ll2.)
No. 1,926.
L
IItnnCIPAL CORPORATIO:Ns-DEFECTIVE STREBTS-LUBILITY OF CORPORATE OFFICBRII.
By Its charter. the olty of Portland is deciared. not to be liable to anyone for an injury 1'8Ilulthig from a defective condition 'of the streets; but any officer thereof who by hili" wlllful of a duty enjoined by law, causes such lnjurv, ill so '
I.'
BAM&-WIl.LFUL NEGLECT.
The common Muncil 1.8 bound by the charter to provide by ordinance for the repair of the streets, and if it willfully neglects so to do the members thereof are liable'personally in damages to anyone who is injured in consequence thereof. The common col1ncil cannot be said to willfUlly neglect t.o order the repair of a Itreet, unless it has actual or oonstructlve notice of its defective condition; and the faotthat the defeot waa'<ipen:tO common observation is such constructive notice.
BAME-NoTiCB OF DEFBCTB.
At Law. Action by,W.illiam Jngate Balls against Tyler Woodward and the common council of the city of Portland, Or. Tried to the court without a jury. Findings and judgment for defend.
ants. '.
£.aul.8, De<J,dy and John M. William T. Muir, for defendants.
. .. : . '
for plaintiff.