Norcross v. Nunan

Justification of Sheriff in Trespass—Sale of Pep.sonal Property Void as against Creditors—Attachment—Execution—Trespass— Sheriff—Vekdict.—Action for the recovery of personal property, or its value, and damages for its detention. Plaintiff did not claim the delivery of the property to him before judgment. The defendant, Sheriff, justified under a writ of attachment and an execution; the property was not taken from the possession of the plaintiff.

Held (¡,er Myrick, J., and Morrison, C. J., concurring): Conceding that the writ of attachment was inadmissible as evidence because the affidavit for the writ was defective in stating that the amount claimed was due upon either an express or implied contract, the execution, which was valid on its face, and which was offered bvthe defendant, was admissible in evidence as the basis of the defense that the transfer of the property in controversy from the defendants in the writ to the plaintiff in this action was void as to creditors of such defendants.

Id.—In such case irregularities in the proceedings for the judgment do not prevent the officer from justifying under an execution valid on its face.

Id.—Rule as to Courts of Limited Jorisdiction.—The same rule applies to a Court of limited jurisdiction if the subject-matter of the suit ' is within that jurisdiction, and nothing appears on the face of the process to show that the person was not also within it.

Id.—Verdict Erroneous.—The Court instructed the jury to render a verdict for the plaintiff for the property, and to find the value of the property and the damages. The jury found and returned a verdict for the plaintiff for the value of the property and damages, but did not find for the plaintiff for the property.

Held: This was error, as under this verdict and the judgment thereon, the defendant could not have elected to deliver the property.

Id.—Affidavit fob Writ of Attachment (per Shabestein, J., specially concurring).—The affidavit for the writ of attachment was sufficient, inasmuch as it stated that the indebtedness was “upon a contract for the direct payment of money, to wit, for labor and services performed for defendants at their request.”

Id.—Fictitious Fames.—To sustain his defense of justification set up in his answer, the defendant*offered in evidence an affidavit and undertaking on attachment and a writ of attachment in an action entitled James Murphy, Plaintiff, v. John Doe Gordon and Richard Roe Gory, Defendants, to which plaintiff objected on the ground that the person alleged to be indebted to Murphy is a fictitious person. Held: This objection is clearly untenable.

Id.—Execution Valid on its Face.—The execution offered in evidence ■ by the defendant appears to be sufficient in form and substance, and it was error to exclude it.