Braden v. Cline

SHAW, J.

This action, wherein judgment was rendered for plaintiff and from which, defendant appeals, grew out of the following facts: At a time when plaintiff, claiming to be the owner thereof, was in possession of certain personal property described in the complaint, the defendant, as sheriff, seized the same under and by virtue of an execution issued upon a personal judgment for money rendered in an action brought by Joseph Uhlein against Edward J. Sheehan, a nonresident, upon whom service was obtained by publication, and on May 16, 1918, the property was by the sheriff sold under execution to Uhlein. At the time of the commencement of the action, August 19, 1916, a writ of attachment was levied upon the property, of which Sheehan was concededly the owner. While it appears that the writ of attachment was duly levied upon the property, the court found that on September 16, 1916, the sheriff withdrew the keeper placed in charge of the property, which was located in a building owned by D. E. Myers and of which Sheehan was lessee, and surrendered possession of the building, together with custody of the property, and thereafter exercised no control over the same until May, 1918, when, after the lapse of nearly two years, he as sheriff again took possession of the property under the.writ of execution so issued upon the judgment in said action. About March 1, 1917, plaintiff leased the building from Myers and, through a purported agent of Sheehan, rented the property involved, paying twenty-five dollar® per month for the use thereof, up to February 28, 1918, when he purchased the same from D. E. Myers, whose title to the property was based upon its purchase at a sale thereof

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under an execution issued upon a judgment obtained by Myers against Sheehan. It is conceded by both parties that this judgment was void on its face, and hence Myers acquired no title to the property which he purportéd to transfer to plaintiff.

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Nevertheless, plaintiff was in possession of the property not only under claim of ownership by purchase, but also by virtue of renting the same from its owner, Sheehan, and, however weak his claim might be, he was entitled to the same, unless the sheriff showed a better right thereto. Since Sheehan was a nonresident, no enforceable personal judgment could be rendered against him; hence, if by reason of an abandonment of the attachment the property was not subject to the lien thereof, the act of the sheriff in seizing the property was wrongful.