Griswold v. Sundback

Citations

• 4 S.D. 441
• 57 N.W. 339
• 1893 S.D. LEXIS 97

Syllabus

<p>1. When personal property in the hands of a third person is attacked as the property of the attachment debtor, and enumerated in the return of the attaching officer, and such third person institutes an action in claim and delivery to procure a return of the property to himself, but, before the property is actually returned to his possession by the attaching officer, such officer gives a redelivery bond,and retains the possession of the property, such officer is estopped from denying that all the goods mentioned in his attachment return were not in his possession at the time the writ of replevin was executed. He is concluded by the recital in his return on the attachment and in the redelivery bond. *</p> <p>2. In the attachment of personal estate, the officer executing the writ acquires a special property in it, and the right to its custody and possession. For any wrong- to it the right of action is in the officer, as, in any termination of the case, he is accountable for the property, either to the creditor or debtor. His right over the property is independent of the creditor or debtor, as in a given event he is responsible for it to the debtor, and in another event the creditor. But this right only exists so long as that special property continues in his possession, or is wrongfully taken from him. If he permits the debtor to retain possession of it, it can be held by subsequent attachments or a subsequent per-chaser free from the attachment lien. If it is turned' over to the al: leged creditor he may appropriate it or misappropriate it in such a way that it or its proceeds cannot be forthcoming to answer any judgment which may be rendered in the attachment suit.</p> <p>3. G., the plaintiff in a claim and delivery action, claimed to be the owner of property which had been attached as the property of S. Upon the trial the attaching officer attempted to justify the taking under the attachment proceedings, and gave a redelivery bond as provided by statute, to retai