, 1892-03-30

question OF SMeratf7S AeVy-Ehe
Judgment of the Lower Court
reversed.
[Aotice-All decisions of the supreme
court will appear in TIE DAILY AND
WEEKLY TRIBUNE.l
Nc. Wunsch, "A. Heilbronner and lei. Brunn.
cO-opartners as M Wunsch q Co., ap-
pellants, VS.. John I'LL McGraw. respon-
dent. No. 407. Filed March 18th, 1872.
One White was, prior to the 26th day Of
November, 1890, retail jeweler in the CITY
Of Seattle, and indebted to J r. Martin.
Thomas j. Carroll, John "a. Black, G.. o.
Hallar, Norman Bros. and NJ Wunsch &
company. On that date all of said parties,
excepting the last named firm, obtained
judgments and had executions issued
against White. The executions Of Martin,
Carroll and Black were placed in the hands
of the respondent, McGraW, who was then
sheriff; at the time of the delivery of these
Wrlts to the sheriff he was directed by the
parties for whom they were issued not to
disturb White in his business, but to leave
him in possession and control of his stock
of goods and permit him to make sales in
the ordinary course of his retail trade The
sheriff followed these instructions and
made one Eyersole, who was carrying on
business in the same store-room with
White, nominal keeper with instructions
49,
to permit him to conduct it as before. On
the same day Haller and Norman Bros !,
placed Writs of execution in the sheriff's
hands without any instructions as to the
manner ia which they should be levied !;
the sheriff made no additional levy under
them at that time. In the afternoon of
November 28th, Haller, complained to the
sheriff that no levy had been made on
his writ, and stated that he de
sired good levy. Thereupon the
sheriff directed his deputy to take the
goods into his custody. On said November
18th Wunsch d Co. obtained Judgment
against White, and had an execution is
sued thereon which was delivered to re-
spOndent with Instructions to lew the
same upon Whites stock of goods. This
writ was placed in the sheriffs hands
shortly after he had directed the deputy to
close the store pursuant to Haller's instruc-
tlons and while he was about that business.
The goods were sold and Wunsch & Co. de-
manded of the respondent, while all the
proceeds were stillin his hands that they all
be applied on their writ. The demand was
refused and this action was brought to de-
bermine the priorities of the executions.
The court held that there had been no valid
levy of the Writs of Martin, Carroll and
Black prior to the time when the sheriff
took the goods into actual custody, but,
that having taken the goods into custody
under the Haller writ the Writs of Martin
Carroll and Black, being then in the sher-
Ills hands, came next in order, and the
court directed the proceeds of the sales of
the goods to be applied accordingly. Not
enough money was realized to paw all Of
said demands and Wunsch & Co. appealed
Ordinarily such writs are entitled to
priority in the order in which they are
placed in the sheriff's hands. The instruc-
tions given to the sheriff by Martin, Car
roll and Black, however, as to their writs
were equivalent to instructions not to lew.
and the sheriff made no levy under either
of them. [ do not see how it can be con-
tended that they derived any benefit from
the levy under the Haller writ. No in
structions of any kind subsequent to the
time of their delivery were given to the
sheriff regarding them. Had the Haller
and Nordman writs been stayed or satisfied
by the execution defendant prior to the re-
ceipt of Wunsch & Co.'S writ the sheriff
would have had no authority to seize or re-
tain the goods under either of the writs of
Martin, Carroll and Black. 1t seems to me
this determines the priority of the writ of
Wunsch d Co. over them. The sheriff had
been expressly directed by Martin, Carol
and Black not to disturb White in carry
ing on his business, and he did not do So
in any way. White made sales as BEFORE
and there is no testimony TO show that he
in any way accounted to the sheriff for the
proceeds of such sales, or that it was UNI
derstood that he was to do so. We do not
decide that it would have changed the re-
suit had there been such an accounting or
understanding. The appointment of Ever
sole as keeper at the same time instructing
him that he was not to do anything.
amounted to nothing.
A mere colorado levy of this kind has
universally been held to be fraudulent and
void, and as the sheriff at no time had any
authority to levy or proceed under these
writs under the instructions given to him
by the plaintiff therein it follows that their
delivery to him was without force for any
HoWes VS.. Cameron, % Fed. Rep. 324.
Freeman on Executions, End Ed. Sec.
206 261.
Eberle VS.. Mayer, 1 Rawle 1865.
Mentz vs.. Hamman, Wharton 150.
Commonwealth VS.. Strembach, 8 RawIe
BAL
Gilmore VS.. Davis, 84 Ill. 489.
Keyser's Appeal, 13 Pa. st. 400.
Parry's Appeal, AL Pa st. 273
Bingham VS.. Young, 10 Pa. st. 1896.
WunderIich VS.. Roberts, 81 Ind. 421.
Berry VS.. Smith, 8 Wash. D. G. go.
Davidson VS.. Waldron, 81 I'LL. 12O.
Kimball VS.. Munger, 2 Hill 1854.
After the writs of Haller and Nordman
Bros. as satisfied appellants writ is en-
titled to precedence. The Judgment is re-
Yersed and cause remanded with directions
to proceed accordingly. Scott, Judge.
We concur: Stiles, judge; Dunbar,
Judge.
c. ]. Anders did not sit at the hearing.
Pronounced Hopeless, Vet saved.