Gunz v. Heffner

Vanderburgh, J.

Defendant obtained a judgment against the plaintiff, which was void for want of jurisdiction. His attorney issued execution thereon, which was satisfied by a sale of the plaintiff’s property. As the appropriation of his property, through a levy and sale by the sheriff, would be the natural result of the issuance of an execution regular on its face, the plaintiff in the execution would be responsible for the damages arising from the acts of the officer in obedience to the commands of the writ, though not for.irregularities in executing it, or for a wrongful levy upon the property of a third person. Foster v. Wiley, 27 Mich. 244 ; Newberry v. Lee, 3 Hill, 523 . For any property, therefore, which can be shown to have been seized and appropriated to the satisfaction of the execution, the defendant is liable to the extent of the damages proved. The record, however, shows that the plaintiff’s property in question in this action had been previously levied on, and was held in the possession of the sheriff, under a prior valid execution, and that, following the defendant’s execution, an attachment was also levied thereon to secure a claim for which judgment was subsequently rendered for an amount exceeding the value of the goods. The property was therefore lawfully in the possession of the sheriff at the time of the sale. The sale, it appears, was made in gross, under both executions, and for an amount sufficient to satisfy both; and out of the proceeds, after satisfying the first, defendant’s execution was also satisfied, except in the sum of $20, *217 which was the amount of his bid for a certain “certificate of sale” of land referred to in the complaint, which was separately sold under his execution. The purchase under the general sale was made by the plaintiff in the attachment suit, and thereafter the plaintiff in this action, with knowledge of the sale, forwarded the goods so sold (and awaiting shipment) to such purchaser, who thereafter, with plaintiff’s assistance, sold the same.

The lien of the first execution covered all the goods, though, if of the value alleged, there would seem to have been an excessive levy, and the sale in gross was irregular; but it was made under executions, the first of which was valid in fact, and its lien was not satisfied upon any part until the sale of the whole of the property levied on. So that we think, under the circumstances, the sale was not void, but the purchaser acquired title to the goods, which was confirmed by the acts of the plaintiff herein. He cannot, therefore, recover in this action as for the conversion of the goods, nor for goods wrongfully taken and sold under the second execution. And no part of the stock can be apportioned as having been sold and applied to the satisfaction thereof; but the surplus realized, over and above the first execution, rightfully belonged, not to the defendant, but to this plaintiff, though the payment to the defendant appears to have been made and received in good faith, it being subsequently shown that the judgment of defendant was void, by facts dehors the record. As long as the sale is not attacked for irregularity of the officer, its validity is not affected by the fact that the property brought less than its value. And as respects the defect in the judgment, the process, regular on its face, protected the officer, and the defendant is not connected with the alleged irregularities in the levy and sale.

We do not see, therefore, that the plaintiff can legally complain, except for a diversion or misappropriation, of the proceeds of the sale. If he had received the full value of the goods after the payment of the first execution, he would have had no cause of action against the defendant. If they in fact brought less, it does not appear to be attributable to defendant, but the plaintiff is entitled to recover the proceeds received by the defendant in the proper action. This action is not, however, brought for such relief, but for a conversion of the *218 goods. We are therefore of the opinion that it was rightly dismissed.

As respects the certificate of sale above referred to, there is evidence tending to show that it was separately sold to him under defendant’s execution for $20, but he acquired no title to the premises by the sale, and the vacation of the judgment and subsequent proceedings became sufficient evidence of that fact. Plaintiff was not,, therefore, entitled to claim damages against defendant for such cause.

Order affirmed.