State v. Cassidy

Citations

• 4 S.D. 58
• 54 N.W. 928
• 1893 S.D. LEXIS 36

Syllabus

<p>1. On the trial of a party charged with unlawfully and wilfully taking personal xjroperty from the custody and charge of an Officer, in violation of Section 6336, Comp. Laws, proof of the rendition of a legal judgment is not required. It is sufficient to prove that the process under which the officer claims to have the property in charge is valid on its face.</p> <p>2. An execution which appears upon its face to have been issued by the clerk of the circuit court of “Hamlin county, state of South Dakota,” since the admission of South Dakota as a state, will not be held void, though issued in the name of the “Territory of Dakota.” Such irregularity is held amendable, and the execution properly admitted in evidence in the trial of this case.</p> <p>3. When an officer, in making a levy under an execution, upon a large quantity of grain in a granary, forces open the doors of the granary, levels off and estimates the quantity of grain, and serves notice of such levy upon the party having the charge and control of the granai'y and property, he thereby acquires the custody a.nd charge of the grain, as against one who has actual notice of such levy, and who subsequently removes the same frem the granary, and converts it to his own use.</p> <p>4. In this state the owner of personal property levied on by an officer holding an execution issued against another party, cannot rightfully take it from the custody and charge of such officer, even though he may do so without a breach of the peace. He must assert his title to such property by legal proceedings.</p> <p>(Syllabus by the court.</p>