Knott v. Sherman

Citations

• 7 S.D. 522
• 64 N.W. 542
• 1895 S.D. LEXIS 108

Syllabus

<p>1. Where property is levied upon as the property of a judgment debtor, to satisfy a judgment against him, and the same is replevied from the sheriif by other parties claiming to own it, but who fail to prosecute such action, in an action by the judgment creditor, or by the sheriif representing him, on the undertaking given in the replevin action, his right to recover rests upon his right to have the replevied property applied to the payment of sudh judgment, and so it should be shown that such judgment is still unpaid.</p> <p>2. A sheriff, having an execution against A., and desiring to levy upon books then in the hands of B. & S., served written notice of levy upon them and upon the judgment debtor, but did not take possession of the books. Immediately.thereafter the P. Co., claiming to be the owner of the books, commenced an action against the sheriff in claim and delivery, and gave the statutory undertaking. Upon the service of the papers in the action by the coroner upon the sheriff, the latter gave the coi’oner an order on B. & S. for the books, and the coroner thereupon gave the sheriff a receipt for the books “as in the hands of B. &. S.” B. & S. refused to allow the coroner to take the books, claiming a lien upon the same for printing and binding, superior to that of the sheriff or the coroner. The P. Co. immediately procured an order of court dismissing its action, and at once notified the sheriff. Whether or, not B. & S. receipted to the sheriif for the books was a disputed fact, upon which the court made no finding. Held, in an action on the undertaking given in the claim and delivery action, that the coroners receipt to the sheriff did not estop the sureties from showing- these facts, and that the coroner could not and did not get possession of the books; that the sheriff lost nothing and that the coroner gained nothing by the exchange of such order and receipt; and that, consequently, there was neither consideration for such undertaking nor claim for