Silver Bow M. & M. Co. v. Lowry
Silver Bow M. & M. Co. v. Lowry
Opinion of the Court
This was an action for claim and delivery by the respondent against the defendant for certain personal property, described as follows: One light red ox, branded “R” on left hip, with left born sawed off; one roan ox, branded “R” on left hip, and with left horn sawed off; one roan ox, branded “ R ” on left hip, with left horn off; one roan ox, branded “R” on left hip also, and “R” on left horn; one brindle ox, branded “R” on left hip, with both horns broken off; one yellow and white Texas ox, branded ££W” on left ribs, and blotch brand on both hips, not to be made out; one red and white speckled ox, no brand, with left horn broken off; one ten thousand iron axle wagon, Sacramento make, with wood rack and four ox yokes, with bows and chains thereto belonging, used with said oxen and wagon. A demand was alleged and judgment demanded for the recovery of the property or damages.
The defendant justified as the sheriff of Silver Bow county, alleging that, by virtue of certain writs of attachment issued on the 6th day of October, 1882, and then placed in his hands, against one “Durand,” h<g upon the 12th day of October, 1882, attached and took into his possession all of the property described in the complaint, and made and filed his return of said writ on the 13th day of October, 18S2. That from that time till the commencement of this suit he has held and possessed said property by virtue of said writs. That “Durand ” is the owner of the property, etc.
The plaintiff replied, denying, among other things, that any proper or valid writ of attachment had been issued, as alleged in the complaint; denied that under or by virtue of any legal or properly issued wrrit of attachment or otherwise the defendant attached or took into possession all or any of the property described in the complaint or made return of his proceedings to the court below on said writs of attachment; and denied further, that said Durand was the owner of the said property.
The plaintiff objected to the introduction of these returns in evidence, so far as the six head of cattle are concerned, described as being of different brands, on the ground that the return did not specifically describe the said six head of cattle of different brands; and that as to them, it did not show any levy and seizure under said attachment, of the cattle described in plaintiff’s complaint, and that the attempted description of said six head of cattle in the said return was too indefinite and uncertain to identify said property.
The defendant then offered to prove by James M. Fish
Should the court have excluded the return as to the “six head of cattle branded with different brands,” because the same was so indefinite and obscure as not to amount to an inventory? The statute provides that the sheriff shall make a full inventory of the property attached, and return the same with the writ. What is a full inventory? An inventory is a list or schedule, or enumeration of property, setting out the names of the different articles, either singly or in classes. See Boüvier, “Inventory.” The inventory of a store, containing many thousand articles, as full and complete as the most accurate man of business could make it, would not contain a tenth part of the number of the articles set out
A reasonably brief and certain description or naming of the articles is sufficient. This one is not so faulty as to be a nullity. “Six bead of cattle, with different brands,” is a brief description of substantial property. A further description might have been added as to natural marts, and colors, artificial marks and brands, ages and sizes. But these would only have the effect of making identification more easy. The sheriff makes himself responsible by his return for six head of cattle, and he should have had the benefit of his return in the court below, and should have been permitted to have identified the cattle as the very same which were seized by the plaintiff in this action. The question of identity could have been settled by parol proof, and by nothing else. In this case the return was not the only evidence of the nature and description of the property. The property
. In Darling v. Dodge, 36 Maine, 370, is to be found a parallel case to the one at bar. In that case the return of the officer was, that he had attached “sixty cords of soft cordwood, more or less, now lying near the western end of the bridge leading over McHard’s stream.” It appears, from the evidence, that the wood consisted of pine and spruce and white birch and white maple, intermingled together, in proportion of about two-thirds of spruce and pine and one-third of white birch and white maple;, that it was all cut from the same land and at the same time, and hauled intermingled, without separation of one kind from the other, and that it continued so intermingled till it was taken away and sold by the defendant after the attachment. For that taking and selling the suit was brought. The court say: “ An attachment of personál property, like that in controversy, cannot be made by simply indorsing a return thereof on the writ. It is the duty of the officer to be present at the place where it is situated, and take it into his possession, in order to justify him to make his return that it had been attached. . . . The return of the officer is the evidence that the property referred to therein has been attached. ■ But parol evidence is competent to show that the property attached, and that in dispute, is identical. . . . The attachment may be valid, although
In Drake on Attachment, section 210, it is said: “Where an officer justifies under an attachment, a misdescription in his return of an article of personal property attached by him will not vitiate the attachment, if the appearance and use of the article are such that it may have been naturally, in good faith, so misdescribed. And this is not a question of law to be decided by the court, but of fact, to be tried by a jury.” See Briggs v. Mason, 31 Vt. 433. The object of the statute, which requires a return to a writ of attachment to be specific in the description of property attached, and to be made a public record, is more particulaiiy to protect attaching creditors in cases where the sheriff does not retain the possession of the property; and is intended to supply the same information to a subsequent attaching creditor or purchaser that might be obtained by such a person by seeing the property in the actual possession of the sheriff under the writ, so that thereby he might be put upon inquiry as to a prior claim. In the case at bar the property was in the actual possession of the sheriff; could be seen and identified as that -which had been levied upon. There could be no mistake about that fact; and it was proper that it should appear in evidence that it was the identical property in controversy.
Judgment reversed and cause remanded for a new trial.
Judgment reversed.
Reference
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- Silver Bow M. & M. Co. v. Thos. M. Lowry
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