Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-17

Ldnpher, appellants, as. Seth W. Long, Ira |
c. Troacb,1dge. and Dersnis sheehan, Respond
ents.
OPINION.
The defendant Long, was sheriff of the
County of Waseca, and Stevenson his
deputy; executions issued against the property
of Sherwins were delivered as follows: One in
favor of Charles Shedd to the sheriff himself,
ut $50 o'clock P. NJ. of March 10, 1877.
One in favor of Chancery Hanlin, ct al, and
another in favor of s. Kicker, ct al. to the
sheriff in person, at 2 o'clock A. II. of March
20; and one in favor of these plaintiffs to the
deputy at 6 o'clock A. NJ. of the same day.
The deputy levied this last execution
at half past six, A. n. of the same day
and took possession of the property. About
half hour thereafter the sheriff levied the
three executions delivered to him IN person
| upon the same property, and upon his request
the deputy delivered to him the plaintiff
| execution and the possession of the property.
The sheriff advertised the property for sale un-
| der several executions, not naming either of
them, and sold the property and applied the
proceeds after deducting his fees, to the pay
| ment in full of the Shedd execution, and the
remainder upon the execution of Hanlin ct al
and returned the plaintiffs wholly unsatisfed,
whereupon plaintiffs bring suit against the
sheriff and the sureties in his appeal bond.
| The question presented is whether the levy
of an execution gives the executive creditor a
/ lien upon the property, which entities him to
| priority over other executions III the hands of
| the same officer against the same debtors, de-
liyered to the officer before, but not levied till
l after his.
! For these executions are all to be taken as
delivered to the sheriff. The deputy is not an
| officer having seperate official existence from
| that of the sheriff. He is an officer of the
sheriff, whose power and Duties so far as they
effect the public, it is true, are defined by law.
But he holds the Office at the pleasure of the
sheriff. is appointed and removable by him.
and civily responsible to him and not to the
parties whose writs come into his hands. He
must act in the name of the sheriff and not in
his own name. All his acts are in law the
acts OF the sheriff, and the responsibility civily
for such acts done within his authority is that
of the sheriff. Our statutes do not, do the
statutes of some of the States, alter in any
way the status of the deputy.
1t it the duty of the sheriff upon a writ COM
ing into his hands to use due diligence in the
execution of it. It attaches to the writs as they
come into his hands, and it follows that
it is his duty to execute first those which first
delivered to him, upon several executions in
favor of different creditors against the same
iebtor; it is his duty to the creditor in that
first delivered to execute that first, and to the
| creditor in the second. to execute that second,
md SO through them all. This is the duty he
yves to the several creditors. But the rights of
! the creditors or against each other are not
| ne ;essarily controlled by it.
At the common law an execution bound the
| goods of the debtor from the time of the teSte,
even though they subsequently trans
ferred to bona tide purchaser. The statute
Charles H.. chapter 3, section IL, provided that
the execution 'shall bind the property of the
goods against which such writ of execution is
sued out but from the time that such writ
shall be delivered to the sheriff, under sheriff
or coroner to be executed Under the COM
mon law rule the execution operated
| as lien in favor of the creditor for
! the satisfaction Of his debt. from the time of
the teste, and under the statute, it operated as
such lien from the time of it's delivery to be
executed. And the latter would continue to
be the rule, wereiit not for the provisions of
the statute of this state, sec. 269. ch sc, Gen
Statutes enacts that ''Uutil a levy, property.
not subject to the lien of the judgment, is not
affected by the execution. So that the creditor
acquires a lien on the property by virtue of bis
execution only from the levy. The property is
not affected by the teste, the delivery to the
sheriff. The levy fines the rights of the credit
or as to the specified property. 1t is argued
that the statute 30, Charles IL and the general
statutes were passed only for the protection of
bona tide purchasers and therefore do not affec
the rights of execution creditors against such
other. If this were SO, their rights would bt
controlled by the common law rule, that the
. execution binds the goods from ,7
!. delivered and levied might take precedence Of
all the others, because of the priority of it,
, teste.
We do not think the statute was intended tt
operate only as between the execution creditor
2 and bona tide purchaser claimed, but it wa
= intended to define absolutely, as it's Language
indicates, the rights of the creditor to tn
specific property, as between him and all others
The execution first levied. then has the frs
lien on the property, though there may be 9th
ers in the hands Of the sheriff which were de
S livered to him before the one levied. Russell
:, VS.. Lawton, II Wis. 219. Knox VS. Webster
; 10 i'd, 426.
The creditors in executions afterwards leviet
t cannot claim to be paid out of the propert,
until the one first levied is satisfied. Thi.
would be SO in contest between the creditor
n having the first lien by levy and the sheriff.
: The remedy of the creditor in the execution
first delivered is against the sheriff. If the lat
! ter through negligence omit to levy the frs
1 execution till second has been levied and los
thereby accrues to the first execution credito
an action will undoubtedly lie.
1t does not follow, however, from the rule o
t law that sheriff and his deputies are regarded
4 as officer; that where several execution
against the same debtor, all placed. some in tn
9 hands of the sheriff in person, and others il
s the hands of his deputy, and in consequence
: thereof, and without actual negligence of tn
sheriff or deputy holding the execution frs
delivered, that the sheriff is liable to the cred
8 itor in the first execution.
= When it comes to a-question of diligence tn
law recognizes the fact that the sheriff and hi
s deputy are different persons, though in theor
: one officer. And it does not requir
impossibilities, it regards the question of dill
gence. in view Of that fact and of what ma
s naturally happen in consequence of it. Russell
e VS.. ,Lawton anti; Whitney Butterfeld, 1
: Cal. 1856.
u Order rovarsnd now trial or1ere1