
    Root v. Railroad Company.
    
      Attachment — Sufficiency of levy — Return of officer — Revised Statutes, section 5529.
    1. In order to constitute the levy of an attachment on personal property, it must be taken into the custody of the officer levying the writ, so as to be held subject to the order of the court from which the writ issued. After the seizure has been effected, the property may be placed by the officer in the possession of a person acting for him as keeper, but cannot be left in the possession of the debtor, and subject to his control, unless upon the execution of a forthcoming undertaking as provided in section 5529 of the Revised Statutes.
    2. In the absence of a levy so made, the court acquires no jurisdiction over the property sought to be attached, and it may be taken in execution or attachment by any other creditor as if no previous writ had been issued.
    
      3. Where, as a matter of fact, personal property is for the first time seized by an officer and taken into his custody under a writ of execution, the return of the officer that he had levied the same upon certain property, subject to a former attachment, does not preclude the execution creditor from showing that, from an omission of the officer to take the property into his custody, no such attachment had in fact been made.
    (Decided June 7, 1887.)
    Error to the Circuit Court of Hocking County.
    The litigation in the case below arose out of a controversy between certain creditors of an insolvent corporation, the Hocking Iron Company. The plaintiff, under an execution issued upon a judgment in its favor, had levied upon certain property of the insolvent company. Executions of other creditors, the first being that of The Austin Powder Co., had previously been levied upon the same property. But, prior to any of these levies, the plaintiff in error Charles Root & Co., claimed to have acquired a lien upon the same property by proceedings in attachment. The suit was begun for the purpose of contesting the validity of this lien. By an amended petition the ¡plaintiff below claimed that the property had never been taken into his custody by the sheriff under the writ of attachment, and that no attachment was in fact made. Like averments were made by the other execution creditors in their cross-petitions. The case went to the circuit court on an appeal, where it was tried upon the pleadings and the evidence. The court, at the request of Root & Co., made a finding of the facts, and rendered judgment thereon in favor of the execution creditors. The finding is as follows :
    . “ 1st. That the defendant, Charles Root & Co., obtained a writ of attachment against the Hocking Iron Co. from the court of common pleas of Hocking county, on the 9th day of October, A. D. 1882, and placed the same in the hands of the said T. F. McCarthy, sheriff of said county.
    “ 2nd. That on the 10th day of October, A. D. 1882, said sheriff and one D. C. Welling, the attorney of record of said Root & Co., proceeded to Orbiston, in said county, for the purpose of levying said attachment upon the property of said Hocking Iron Company. That shortly after their arrival there, they met one Joseph F. Wheeler, the general superintendent of the furnaces, mines, stores, and property of the said defendant, The Hocking Iron Company, to whom was made known the business of said sheriff and said Welling, and that said Wheeler assured the said Welling that said claim of said Eoot & Co. would be paid in a few days. It was thereupon agreed by and between the said D. C. Welling, as the attorney of said Eoot & Co., and the said Joseph F. Wheeler, as the said superintendent and agent of said Hocking Iron Company, that in order to avoid the stopping of said furnace and mine, the closing of said store, the discharge of the employes of said Hocking Iron Co., and the suspension of the mining and manufacture of pig iron, and the cessation of said company’s business, that the said sheriff should declare that he attached said stock of goods in said store, but that the same should not be done in the presence of any freeholders, or in a public manner, nor should any inventory or appraisement be made of said property or any part thereof, nor should any notice of said attachment be posted up in any conspicuous place, nor should said store be closed, nor any of the said goods be taken into the actual possession of said sheriff; but that the said Wheeler should remain in charge of said store and the goods therein, run said business just as it had been done before, sell any or all of said stock of goods necessary or desirable in carrying on said business, buying any additional stock for said store, keep no account of said business or of such sales, make no return of said sales or the proceeds thereof to said sheriff or any one for him; that said sheriff thereupon, in the manner agreed upon, declared said levy of said attachment and departed in company with the said Welling, leaving the said Wheeler, superintendent as aforesaid, in full possession and control of said property.
    
      “ 3rd. That on the evening of the same day, or during the next day, the said superintendent, Wheeler, gave to the said sheriff in his office in Logan, O., a list of the additional articles of personal property not in the store, consisting of mules, horses, bank cars, etc., but that said sheriff did not see any of said property, nor appraise the same, nor take the same into his possession until he seized it under the The Austin Powder Company’s writ.
    “4th. That the said Wheeler, superintendent as aforesaid, continued in the possession and control of all of said property, selling and disposing of the same, buying and adding thereto, and using the same in conducting the business of the said Hocking Iron Co., and turning the proceeds over to said company in the same manner as he had always done while conducting said business.
    “ 5th. That on the 20th day of October, A. D. 1882, there came into the hands of said sheriff a writ of execution from the court of common pleas of Franklin county, Ohio, against The Hocking Iron Co., and in favor of The Austin Powder Co., by virtue of which writ said sheriff, on October 21,1882, seized and took into his possession, for the first time, said stock of goods and personal property, closed up said store, furnace, and mines of said Hocking Iron Co., and sold said property thereafter; out of which sale arose the funds in controversy.
    “ 6th. That on the 5th day of December, 1882, while said sheriff was still in possession of said property, he levied the execution of T. J. Price & Co., and The Columbus Machine Co. upon said property, and upon the 19th day of December, 1882, he levied the execution of plaintiff upon the same.
    “ From which finding of facts the court concludes, that in law, no valid levy or seizure of said property, or any part thereof, was made by said sheriff under said writ of attachment of said Root & Co., but that said pretended levy or seizure under said attachment was illegal and void as against the subsequent levies made under the executions of said plaintiff and the said cross-petitioners, T. J. Price & Co. and the Columbus Machine Company.”
    The plaintiffs in error excepted to the second, third and fifth findings of fact, as not sustained by the evidence; and, on the overruling of a motion for a new trial, took a bill of exceptions, which is made a part of the record. They also excepted to the conclusions of law and the judgment of the court, upon the findings of fact.
    It appears from the returns, set forth in the bill of exceptions, that the sheriff’ as to each of the executions, returned that he levied the same subject to the attachment of Root & Co.
    
      D. C. Welling and Watson & Burr, for plaintiffs in error.
    The defendants in error admit, in their pleadings, the seizure,, by the sheriff, of the goods. Ve claim that after such levy and seizure, the sheriff could do nothing that would render the service of the writ illegal as against subsequent execution or attaching creditors.
    The railway company and other contesting creditors cannot attack, in a collateral proceeding, an attachment, for mere irregularity. Ward v. Howard, 12 Ohio St. 161; O’Farrell v. Stockman, 19 Ohio St. 296; Paine v. Mooreland, 15 Ohio, 435; Moresi v. Swift, 15 Nev. 215; Rudolf v. McDonald, 6 Neb. 166; Fridenberg v. Pierson, 18 Cal. 152; Isham v. Ketchum, 46 Barb. 44; Jacobs v. Hogan, 15 Hun, 197; Chamberford v. Hall, 3 McCord, 346; McBride v. Floyd, 2 Bailey, 214; Fowler v. Whitman, 2 Ohio St. 270; Tilton v. Cofield, 93 U. S. 167.
    The levy of the attachment made by the sheriff was valid. Pugh v. Calloway,, 10 Ohio St. 495; Murphy v. Swadener, 33 Ohio St. 94,
    The subsequent levies were expressly subject to the attachment of Root & Co. This fact was a recognition of their rights which the execution creditors should not be permitted to deny. Liebman v. Oshbacker, 36 Ohio St. 94.
    
      Levi J. Burgess, for defendants in error.
    The court of common pleas never had jurisdiction over the personal property of the The Hocking Iron Company in the suit of Root & Co., because no valid levy of the writ of attachment was made. The property was never legally seized by the sheriff so as to bring it within his control and within the jurisdiction of the court as against the rights of subsequent levying creditors and bona fide purchasers. Drake on Attachment, sections 5, 255-259, 291, 292; Mitchell v. Eyster, 7 Ohio 1 pt. 257; Parker v. Miller, 9 Ohio, 108; Cochran v. Loring, 17 Ohio, 409; Endel v. Leibrock, 33 Ohio St. 254; Voorhees v. Jackson, 10 Pet. 449; Paine v. Mooreland, 15 Ohio, 435; Minor v. Smith, 13 Ohio St. 80; Crocker on Seriffs, sec. 436; Green v. Burke, 23 Wend. 493; Murphy v. Swadener, 3 Ohio St. 85.
   Minshall, J.

In order to effect an attachment of personal property, it must be taken into the custody of the officer serving the writ; until this is done, no attachment can be said to exist. It need not in all cases be actual, but must in every case be such custody as the nature of the subject attached will admit of. Such is not only the positive requirement of our statute (sec. 5528, Rev. Stats.), but is in accordance with the statement of the law upon the subject as found in the treatises and decided cases. 1 Wade on Attachment, sec. 129; Drake on Attachment, sec, 292a; Waples on Attachment, 175; Freeman on Executions, sec. 262; Minor v. Smith, 13 Ohio St., 79; Murphy v. Swadener, 33 Ohio St., 85.

There is no doubt but that after the attachment has been properly made, the officer may continue his custody of the goods by placing them in the possession of some third person acting as his agent. They cannot, however, be left in the possession and subject to the control of the debtor. “It is,” says Mr. Drake, “ of special importance that an officer should not leave attached property in the possession of the defendant, unless authorized thereto by some statutory provision.” Drake on Attachments, sec. 292a. And he adds as a reason that, “ The possession of personal property is the only indicium of ownership; and to suffer a debtor to retain possession of his property after it has been attached, is prima facie evidence that the attachment is fraudulent in respect to other creditors, whose attachments, or a bona fide purchase from the defendant, will prevail against the attachment whose lien has thus been lost.” See also, Dunklee v. Fales, 5 N. H. 527; Bryant v. Osgood, 52 N. H. 185; Gower v. Stevens, 19 Maine, 92; Gates v. Flint, 39 Miss. 365; Murfree on Sheriffs, sec. 259.

The requirement of our statute as to the attachment of personal property is, that if it can be come at, the officer shall take it into his possession, and hold it subject to the order of the court.” Sec. 5528, Rev. Stats. But it may, as provided in the next section, be delivered by the officer “ to the person in whose possession it was found ” by such person executing a forthcoming undertaking. In such case the undertaking, instead of the property, becomes the security of the creditor; and the property itself may be disj>osed of by the debtor, or taken in execution by other creditors. Jones v. Peasley, 3 Green, 52; Biscoe v. Sandefur, 14 Ark. 568; Brush v. Seguin, 24 Ill. 254; Freeman Ex. sec. 264. Hence it appears, that in any case, when personal property, sought to be attached, is left by the officer in possession of the debtor, it ceases to be in custody of law and may be taken by other creditors. Whatever the rule may be as to personal property taken in execution Acton v. Knowles, 14 Ohio St. 28), such is the rule where it is sought to effect an attachment of it.

That there are many requirements of the statute regulating proceedings in attachment that may be omitted without affecting the validity of an attachment as to other creditors and purchasers, is not questioned. But it will be found that these requirements are such only as are designed for the protection of the debtor — as the giving of a bond by the attaching creditor, or mere irregularities in the affidavit for an attachment. Such irregularities and omissions are regarded as waived unless advantage is taken of them by the debtor; they are not available to other creditors. The provisions, however, that require notoriety in making the attachment — that it shall be done in the presence of two freeholders of the county, ánd that the property shall be taken into custody of the officer, are designed for the protection of creditors and purchasers of the debtor,; and, unless the property is so attached, the court acquires no jurisdiction over it, and the attachment is invalid as to such third persons. This distinction is taken in the case of Ward v. Howard, 12 Ohio St. 161, in the observation of the court, that “ any thing may be' waived by the defendant, which is substantially no injustice to other creditors, or is not intended to guard their rights.” And so the court added that “the objection that a proper undertaking was not executed, and that the facts were defectively stated in the affidavit, were properly overruled by the court.” O’Farrell v. Stockman, 19 Ohio St. 296, is of like effect. We have examined the various cases cited by counsel for plaintiff in error, and find none that go further than we have stated, though the generality of the language used in some might indicate that they did. A different holding would be lacking in principle, as all the authorities agree that the property must be seized in attachment or the court acquires no jurisdiction over it; and that no seizure can be effected unless the officer takes it into his custody; and if he voluntarily abandons its custody to the debtor or his agent, the attachment ceases to exist.

Applying the law to the facts as found by the court, it is clear, as we think, that no such custody of the property sought to be attached was taken in this case, as is required to constitute an attachment. The sheriff, with the attorney of the creditor, went to the place of business of the debtor, The Hocking Iron Company, listened to the representation of its superintendent that the debt would be paid in a few days, and that to make an attachment would be rpinous to the business of the company. And, influenced by these considerations, the sheriff, with the assent of the creditor’s attorney, went through the form of declaring that he attached the property, and then departed leaving it in the possession of the superintendent of the company, with the understanding that he might proceed to deal with the property as if no attachment had been made, and he did so. No change was made in its actual custody, and no freeholders were called to witness the attachment. It is true a notice was posted that the attachment had been made, but it was purposely posted in the most inconspicuous place that could be found. In all that was done more care was observed to avoid anything that would, by its notoriety, embarrass the debtor in the prosecution of its business, than to effect a valid attachment, by observing the requirements of the law regulating such proceedings. It cannot be said that the property was left with the superintendent as the agent or keeper of the sheriff. It was found in his possession as the agent of the debtor, and left with him as such agent and not as the agent of the sheriff; and no forthcoming bond was taken as required in such cases. The findings of the court show that the intention was that the levy should be kept secret, and for this reason, if no other, the attachment was void. Thus it is said, The levy ought to be notorious; it must not be made in such manner as to indicate an intention to keep it secret. In general, a secret levy must be held invalid as against third persons.” Freem. Ex. sec. 260, 261.

But it is claimed that the execution creditors are precluded from showing that no attachment had been levied upon the property, by the return of the sheriff, made upon such execution, that he levied the same subject to the attachment of Root & Co. There is no finding as to this made by the circuit court, most probably from the fact that no such point was made in that court. But the return of the sheriff is set forth in the bill of exceptions, and the fact that the return, in each case, was made as claimed, seems to have been uncontroverted; and may therefore be noticed.

There are, as we think, two reasons why the returns made by the sheriff upon the writs of the execution creditors are not conclusive as to them :

1. The attaching creditor was not a party to either of the suits in which these returns were made; as to each of these suits he was a stranger. It will not be claimed that his rights could have been impaired by any return made by the sheriff upon either of these writs, hence to make either of them conclusive for him, whilst not so as against him, would be to apply the principles of an estoppel where there is no mutuality. And it is upon this principle that, as a general rule, a return is regarded as conclusive between parties and privies when offered in evidence. When made and filed, the return becomes a part of the record in which it is issued. If,” says Mr. Freeman, we keep this fact in view, we shall usually be able to determine, without difficulty, whether a return can properly be admitted in evidence, and tbe effect to be given to it when it is admited. Whenever the record in a case is competent evidence, the return, because it is a part of that record, is also, as a general rule, competent evidence. If the case is one in which the record is conclusive evidence between the parties, the return is also conclusive between them. If, on the other hand, the record is not conclusive between the parties, the return cannot be regarded as conclusive between them.” Freem. on Ex., sec. 363. This is certainly a rational statement of the rule, and accords with the decisions in this state. As between a party and a stranger, the return may for some purposes be evidence, but it is not conclusive. The latter effect is given to a return only as between parties and privies. Phillips v. Elwell, 14 Ohio St. 240, and authorities cited by Peck, J., at page 244.

2. Again, it is no part of the duty of a sheriff to determine whether there are, or are not, liens upon the property that he seizes in execution. Hence, the return of the sheriff on the execution in favor of the Austin Powder Co., that he levied it upon certain property subject to the attachment of Root & Co., was not a necessary part of his return on that writ; and the same is true as to his return upon the subsequent executions. Where the property on which the sheriff levies a particular writ, is in his possession under a former one, a second seizure need not, and in fact cannot, be made; the seizure as to such subsequent writ is in law effected by simply indorsing a levy upon it, and such levy will take effect from the receipt of the writ by the sheriff. Where the property is in his custody under the former writ, such custody supports the return of a levy made under the second writ; but if it is not, and no seizure is in fact made under the second writ, the latter one is no more effectual than the former one. But where, as in this case, the property is for the first time seized under the second writ (5th finding of fact) it stands upon its own footing, and is necessarily prior in right to all liens depending upon a seizure of the property ; and it is not in the power of a sheriff to alter the rights of a party in this regard by any statement in his return in favor of another, where such statement is not a necessary part of his return; and this is true irrespective of the question of parties and privies. For it is well settled that the return of an officer is conclusive as to such parties and privies only as to such facts as it was his legal duty to state. Cow. & Hill’s Notes; Phil. Ev. 383; Freem. Ex., sec. 364. A return upon a writ properly embraces no more than a pertinent history of what was done by the officer in executing it according to its requirement ; and where it is made to include matters outside of such history, the matters so incorporated constitute no part of the return, and are not evidence even as between parties, much less as between strangers.

A further point is made upon the pleadings, that the amendment filed to the original petition, is inconsistent with it. This may be so, but we see no reason why a party may not be permitted to change the averments of his pleading. Such a motion is always addressed to the sound discretion of the court, and will not be reviewed on error unless it clearly appears that such discretion has been abused. Clark v. Clark, 20 Ohio St. 128. It was averred in the original petition, “that on the 16th of October, 1882, the sheriff had seized all of said goods ” under the attachment of Eoot & Co. If this averment was made aceording to the best of the pleaders’ information at the time, but was incorrect, we know of nQ‘ principle that would preclude him from correcting his statement at a subsequent time by leave of court. The court was doubtless satisfied that the party was acting in good faith, or it would not have permitted the amendment to be filed.

Judgment affirmed.  