181 U.S. 562
ANTONE MARKS, Plff. in Err.,
J. M. SHOUP.
Submitted February 28, 1901.
Decided May 13, 1901.
Messrs. W. W. Dudley, L. T. Michener, W. E. Crews, and J. H. Cobb for plaintiff in error.
Messrs. S. M. Stockslager, George C. Heard, and Arthur K. Delaney for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
This is an action for damages, brought by the plaintiff in error, who was also plaintiff in the court below, and we will therefore so designate him, against the defendant, by virtue of his office, caused by the taking from the possession of the plaintiff of a certain stock of goods, wares, and merchandise.
The goods originally belonged to one Joe Levy, who sold them to one Levine by verbal sale, and as a part of the consideration Levine assumed to pay a debt due to the plaintiff. Levine sold them to one Kendall, who assumed to pay the same debt. Kendall sold and delivered them to plaintiff.
The defendant was at the time of the taking of the goods marshal of Alaska, and he justified the taking under and by virtue of attachments issued out of the District Court against Levy, one in the case of Powers Dry Goods Co. v. Levy, and the [181 U.S. 562, 563] other in the West Coast Grocery Co. v. Levy, and claimed that the transfers by Levy were in fraud of his creditors.
The plaintiff replied that he had bought the goods from third persons for a valuable consideration, denied all fraud, and further pleaded that, during all the time from prior to the commencement of the actions mentioned in defendant's answer until and at the time of the taking, he was in the actual and exclusive possession of the goods, and denied that defendant ever made any levy whatever upon said goods.
Defendant filed a supplemental answer at the trial, setting up that the attachments had merged in judgments upon which executions had issued, the goods sold, and the judgments satisfied.
The case was tried before a jury, and resulted in a verdict for the defendant.
Motion for a new trial was made and overruled, and judgment entered for defendant. This writ of error was then sued out.
In the attachment suits against Levy summons was issued, but not served, and substituted service was afterward obtained by publication. The affidavits for the attachments did not mention the amount of indebtedness claimed, and the sufficiency of the substituted service and the validity of the judgment based upon it are attacked on that ground.
It is also contended that the levies of the attachments were invalid; and error is assigned on the admission of the testimony and in giving instructions to the jury.
(1) The laws of Oregon were in force in Alaska at the time of the attachments. 23 Stat. at L. 24, chap. 53. The provision for attachments was as follows:
It is contended that these provisions were not complied with [181 U.S. 562, 564] and the attachments were therefore void, and, they being void, there was no foundation for the judgments. This court has ruled already as to that contention in the case of Matthews v. Densmore, 109 U.S. 216 , 27 L. ed. 912, 3 Sup. Ct. Rep. 126, and other cases. In Matthews v. Densmore the claim of a defect in the affidavit invalidating the attachment was directly passed on, and of the attachment it was said:
(2) The answer of the defendant alleged that the writs of attachment in the actions mentioned were placed in his hands for service, and by virtue of them he 'duly levied upon all the goods, wares, and merchandise set forth in the plaintiff's complaint herein, and ever since that time has held and now holds the same as said United States marshal under and by virtue of said writs.'
His returns upon the writs were as follows:
It will be observed that the returns are somewhat vague as to whose possession the property was in at the time of levy. If [181 U.S. 562, 565] the fact can be said to have been put in issue by the pleadings the only evidence in the case was given by the plaintiff as follows:
The truth of this was not questioned, and it must be accepted as established that at the time of the levy the property was in the possession of the plaintiff. What is the effect of it? In other words, was the levy made, as described in the return of the defendant, legal?
The statute provided as follows:
These provisions were passed upon in Spaulding v. Kennedy, 6 Or. 208. The facts of the case as stated by the court were as follows:
The court said:
And, after quoting the statute, said further:
The same principle was expressed in Lewis v. Birdsey, 19 Or. 164, 26 Pac. 623, and in Batchellor v. Richardson, 17 Or. 334, 21 Pac. 392.
The cases cited by defendant in error are not to the contrary. Page v. Grant, 9 Or. 116, was a direct attack, after execution returned unsatisfied, upon a sale claimed to be fraudulent. Lyons v. Leahy, 15 Or. 8, 13 Pac. 643, and Philbrick v. O'Connor, [181 U.S. 562, 567] 15 Or. 15, 13 Pac. 612; and Crawford v. Beard, 12 Or. 447, 8 Pac. 537, were creditor's bills brought to set aside deeds for real estate after return of execution unsatisfied. It follows that the levy was invalid and could constitute no defense to the defendant, and the jury should have been so instructed.
(2) The error assigned on instructions not disposed of by the above reasoning it is not necessary to consider. We may say, however, that we have grave doubts of their correctness.
Judgment reversed, with costs, and cause remanded, with directions to grant a new trial.