Kelley-Steinmetz Liquor Co. v. Haugen

'" April 3,” 1907, respondent company, of Minneapolis, sold to C. G. Smith, of. Aitkin,, on credit, the' personal property described in the .complaint.. The goods were shipped’to Smith at Aitkin, where they arrived on the sixth of April, 1907. . On.that day an.action, was duly pending in the district court in Aitkin county, wherein L. Eppstein & Sons Company were, plaintiffs and Smith was defendant, in which action a writ of attachment was issued on that date and placed in the hands of appellant, as sheriff of Aitkin county, who by virtue of the *131writ seized tbe property. On April 19, while the goods were still in the hands of the sheriff under the attachment, Smith executed a bill of sale of the goods to respondent. Judgment was thereafter docketed in the action against Smith in favor of L. Eppstein & Sons Company, and on the first-of May -a writ of execution was issued, and the attached property was levied upon under and by virtue of the execution. On May 10 respondent served upon the sheriff an affidavit of ownership of the property and made written demand, setting forth that the goods were not the property of Smith, but of respondent, and that the ground of respondent’s title was that, on the nineteenth of April, Smith, for value, sold and delivered the property to respondent by written bill of sale. Delivery of the property was refused, and this action was commenced against the sheriff to recover possession. The court found the facts as above set out,' and Ordered judgment in favor of respondent. Judgment was entered, from which the sheriff appealed.

The question for review is whether the findings of fact sustain the conclusions of law. The trial court was under the impression that the facts justified the conclusion' that the goods in question were levied upon under the writ of attachment at a time when they were still in transit; that Smith had no possession, either actual or corn structive; that the seller had a right, either directly or through his agent, to assume possession thereof; and that, consequently, the sheriff acquired no interest in the property by virtue of the attachment or subsequent execution. Conceding that the seller may, before final delivery to the consignee, exercise the right of stopping goods in transit, and thus prevent the consignee from acquiring any title or interest therein, that principle of law can have no application to the facts of this case, as settled by the findings of the trial court. The ground upon which the title of respondent is based, as appears from the complaint, is that the goods were purchased by respondent from Smith by virtue of the bill of sale. The same fact appears from the affidavit which was served upon the sheriff, claiming the property on. the part of Smith. The court so found, and it would be unjustifiable to permit a new and entirely different issue to be introduced to support the judgment. ,. . ,

*132For this reason, the case is remanded, with directions to the trial court to enter judgment in favor of appellant.