MICHAEL TIERNLY v. FRAZIER and LEGIERSE & CO., 1 Tex. L. R. 608

Gould, C. J. Opinion by Le Gierse & Co., of Galveston, having recovered a judgment in a Justices Court, of Dallas county, against M. Tiernly, for $95.55 and costs of suit, amounting to $17.50, caused execution thereon to be issued to Caldwell county, to which Tiernly had removed. This execution came to the hands of the sheriff, October 26, 1874, and being by him placed in the hands .of his deputy Frazier, was by the latter about November 3, levied on five mules, the property of Tiernly.

This suit is brought by Tiernly to recover damages for said levy, alleging that he had on October 28, paid off and satisfied said judgment to Le Gierse & Co., at Galveston, and charging that the seizure oi his property thereafter by virtue of the execution was unauthorized and wrongful, and charging further, that the levy was made by the deputy sheriff, knowing the facts, maliciously and for the purpose of extorting money, and was maliciously instigated by Le Gierse & Co. In support of his action he produced the following instruments : Le Gierse & Co., Wholesale Grocers and Importers.

J No. — Galveston, Texas., ( October 28,1874. Received of Mr. M. Tiernly, ninety-two dollars, in full of account up to date. $92 Le Gierse & Co. p. R. L; LE GIERSE. M. LASKER. B. MARCOS. Office of Le Gierse & Co., Wholesale Grocers and Importers, corner Strand-and 22d street. Galveston, Texas, Oct. 28, 1874. This is to certify that the judgment which was rendered im our favor against M. Tiernly has been satisfied by him, and that we will pay all costs accrued in same.

Le Gierse & Co One or both (the evidence is contradictory) of these instruments was exhibited to Frazier when he first demanded a levy, but in a day or two afterwards he proceeded to levy on the mules. On Kov. 13th he was about to sell the mules when a letter from Le Gierse & Co. to the sheriff, directing the return of the property levied on was produced by Tiernly, to whom it had been enclosed in reply toa letter by him, and by order of the sheriff, who was present, the property was •released.

There is a large amount of evidence adduced, but this statement Is believed sufficient to present what we regard as the main legal question in the case.

The judge instructed the jury that the execution was regular and In due form, that having such process in his hands, the officer was under no obligation to inquire further, but unless satisfactory evidence was produced that the judgment was satisfied, was bound to proceed to demand a levy, and that to find him liable for the wrongful levy of such an exe cation the evidence must show that he acted “ maliciously, wilfully and wrongfully. ” The position taken by .appellant is that the payment of the judgment destroyed the authority of the sheriff to proceed under the execution, and that evidence of such payment which would satisfy a reasonable mind having been produced to Mm, he breante liable as a Imtpuuser, by thereafter proceeding to levy.

The following extract from Freeman on Executions presents that side of the question; “ It is clear that if the writ gives notice of the matters rendering It void, the officer Is responsible } for, while it is reasonable to protect officers against secret vices In the proceedings, it is unreasonable that they should be encouraged in the perpetration of a legal wrong of which they have been notified- But'suppose that, though the writ is in due form, the officer has, outside of the writ, been informed of a state of facts which, if set forth in the writ, would make him answerable as a trespasser for its attempted execution, is it any greater hardship to require him to know the !©• .gal consequence of these facts, than it is to make a similar requirement when his knowledge had been obtained from an inspection of the wjit!

If he is competent to determine the «question in the one case, he is equally so in the other; and we •think that the majority of the reported eases will sustain the proposition that an officer is not justified in attempting to execute a void writ when he has knowledge of the facts rendering it void, whether his knowledge be obtained from the writ or otherwise (Freeman on Exec., Sec. 103, citing Sprague v. Birchard, 1 Wis., 457; McDonald v. Wilkie, 13 Ill., 22; Batchelder v. Curvin, 55 N. H., 460; Watson v. Bedell, 14 Mass., and -, 57; Grace v. Mitchell, 31 Wise, 533; 11 Am. Rep., 613.) In McDonald v.

Wilkie, the officer was protected, and the remark that if he had “ notice of an excess or want of juris- • diction in the justice to issue the process, he would doubtdess render himself liable under-it” was a dictum. The same may be said of Sprague v. Birchard, as appears from the reference to it, in Grace v. Mitchell, in which latter case the opinion of the court was made to turn on the right • of an officer to demand indemnity before levying. Watson v.

Bedell was a case in which the plaintiff was detained by virtue of a written order, -which order was without jurisdic'tion, and void, as in other cases where the writ of authority appears on the lace of the writ, the officer was bound to "'know its invalidity. These are all the authorities cited except the case in 45 if. JEL, which is not accessible to us at this place. We think that they fall short of establishing’ Mr.

Freeman’s proposition, which is limited to eases where the officer has kuowledge of the facts rendering the writ void, and much more do they fall short of establishing that the officer is to be treated as a trespasser, if it turns out that the judgment, though unsatisfied when the execution issued and came to his hands, nor satisfied at the Lime of the levy, because he was notified of the fact in some questionable or unsatisfactory manner, or in any way which might fail to produce conviction equivalent , to actual knowledge. Mr. Justice Cooley, in his book o.a Torts, takes a different view from Mr.

Freeman, of the question “whether, when an officer knows that back of process fair on its face are facts which render it void, he is nevertheless protected in seizing it.» After admitting that this is a point on which the authorities are not agreed, and referring to the authorities on each side, including a recent ease in Illinois not cited by Mr.

Freeman, and in which we have not access, he concludes thus : “It seems to ns, therefore, that the weight of authority and of reason is clearly in favor of the proposition that the officer may safely obey all proseen, fair on its face and is not bound to judge if it, by facts within his knowledge, which may be supposed, to invalidate it. He cites Webber v. Gay, 24 Wend., 485; People v. Warren, 5 Hill, 440; Wilmarth v. Bart, 7 Met., 257; Twitchell v. Shaw, 10 Cush., 46; Watson v. Watson, 9 Conn., 140, 146; (citing Belk v. Bradshaw, 3 T. R., 183, 185; Greason v. Royson, 1 Conn., 40; Miller v.

Davis, Corwyn 590), Cunningham v. Mitchell, 67 Pa. st., 78; Brissord v. Hood, 15 La. Ann., 489; Worl v. Trumbull, 16 Mich., 228; Bird v. Perkins, 33 Mich., 28; Richards v. Nye, 5 Oregon, 382. Our examination of a number of these authorities (we have not access to all of them) lead us to agree with Judge Cooley both as to the weight of authority and of reason.

Chief Justice Shaw, in a case where the evidence exhibited to the officer wau a discharge where the insolvent law oí the State states the reason for “ this valuable rule » to bo “ that it would paralyze the action of an officer and often defeat the service of legal process if he wen1, bound to stop and fry the genuineness and validity of a certificate of discharge .under a bankrupt or insolvent law. The certificate may not be genuine or legally authenticated and yet the officer can take no evidence, nor even put the- debtor himself under oath to prove it. »

Again he says “ is the officer to try all the questions of law and fact involved in the question of the genuineness, the validity and the application of the discharge to this particular de-btl To hold that an officer would be liable' in trespass for executing the command of the precept, would be to hold that an executive officer must try all these questions without power to summon a witness or hear the parties, and to decide the case correctly apon peril of being liable for damages for false imprisonment.” Wilmarth v. Burt, 7 Met., 260 and 261.

The safe rule seems to us that which protects the executive officer in obeying a legal writ in his hands, and does not charge him with knowledge of the validity of that writ by reason of any outside facts of which he may be notified. Whether the same protection should be extended to the officer where the facts rendering the writ void, become absolutely known to him by means of his own personal observation of their occurrence, it is not in this case important to inquire. The case of Twitchell v. Shaw, has many points in common with the one before us.

Shaw, a constable with an execution in his hands against Twitchell, proceeded to make a levy, notwithstaudiug the latter produced to him a receipt from the judgment creditee expressed to be in full satisfaction of the debt, and notwithstanding a disinterested person told him at the time, that he was present at the settlement, and saw the money paid, and the receipt and discharge executed and delivered. It seems that the amount named in the receipt, was less than the sum for which the judgment was rendered.

The court say: “We are strongly inclined to the opinion, that as between the parties a receipt for a smaller sum cannot operate as the discharge of a larger, because it is without consideration for the excess, and is not an accord and satisfaction. Brooks v. White, 2 Met., p. 283; Tuttle v. Tuttle, 12 Met. p. 554. But another ground appears to ns decisive. We do not understand that after the execution was delivered to the officer for service, the plaintiff, the execution creditee, gave Mm notice not to serve it.

The debtee exMbited Ms receipt and offered a witness to prove the settlement, but the officer was not bound to investigate the genuineness or sufficiency of the receipt; he held an execution from a court of competent jurisdiction, and that was a legal justification to him for taking and selling the present plaintiff’s property.

Ho action, therefore', either of trespass, or case can be maintained against him by the present plaintiff.” (10 Cush., p. 48.) 'The judgment against Tiernly, was several dollars in excess of the amount on the receipts which he held, and the question of its sufficiency to show a satisfaction in full of the judgment, would reasonably have suggested itself to the deputy sheriff — more than that — the costs as appeared by the execution amounted to $17.50, and the other instrument held and exhibited by Tiernly, showed that at the date of its execution remained unpaid, Le Qierse & Go., promising to pay them— under these circumstances, can it be said that judgment was satisfied, or that the execution conferred no authority to levy and sell?

This court has, therefore, declined to go beyond the authorities in holding executions void by reason of matters not appearing of record. (Owen v. The City of Navasota, 44 Tex., pp. 521, 522.) With the lights before ns we are not prepared to say that the execution was invalidated by reason of the payment made and receipt given.

But however this may be, we are satisfied that the deputy sheriff was legally justified in declining to pass upon the genuineness and validity of the receipts held by Tiernly, .and in proceeding to make a levy, and that by so doing be did not subject himself to any action by Tiernly for damages.

The act of levying using legal, it did not amount to a legal injury^ and could not be actionable because it was done with a bad intent.” (Cooly on Torts, p. 688, and authorities cited.) That part, of the charge which allowed the jury to find against defendant, Frazier, if the levy was made “maliciously, wilfully and wrongfully/’ was erroneous. It may be remarked an examination of the evidence has led ns to the conclusion that no bad motive or ■wrongful intent on the part of Frazier was shown. But, at all events, his action in levying was justified by the execution, and the action was not maintainable against him.

That being the case it was not material to inquire whether the charge on his branch of the case was in all respects correct or not. In regard to the other defendants the case was taken from the jury by a demurrer to the evidence, and that demurrer was sustained by the court, and we think rightfully sustained. They had given to Tiernly two instruments, evidently de signed to protect Mm from any execution on the judgment, and having done this they might well rest in the belief that Tiernly would use them as ill tended, and that they would effectively serve as their order countermanding the execution.

See Schiebel v. Firstrom, 1 Bos. & Pull., 388, cited, and stated in Brown v. Peter, 7 Wend., 308.) When they learned that these ha<^not proved effective they followed them up by an order to the sheriff. The circumstances negative the charge that the levy was authorized or instigated by them, or that they were culpably negligent in the matter. The objection that the demurrer to the evidence was uot made at the right time cannot avail the appellant, because he not only failed to make it at the time, but actually joined in the demurrer. Being of opinion that the judgment below should be affirmed, it is so ordered.