
    The Fidelity & Casualty Co. v. Thumm et al.
    (Decided April 21, 1930.)
    
      
      Messrs. Howell, Roberts & Bunccm, for plaintiff.
    
      Mr. Sol Edgert, for defendants.
   Levine, J.

This cause comes into this court on appeal from the judgment of the common pleas court. The petition filed by plaintiff, the Fidelity & Casualty Company, seeks to compel the bailiff of the municipal court to apply certain money, the proceeds of an execution sale, to the satisfaction of a judgment rendered in its favor in the common pleas court.

It appears that on September 24,1929, the defendant John A. Novario obtained a judgment in the municipal court of Cleveland in the sum of $1,000 against one Bernard Tbasco. On the same day he caused a writ of execution to be issued to the bailiff in the municipal court, and, accordingly, on the same day, the bailiff levied an execution upon a Hupmobile sedan belonging to Tbasco. According to the return of the bailiff, after the levy was made, he placed the same in the custody of one F. Kelly. The return of the bailiff on the writ of execution is as follows:

‘ ‘ Received this writ and by virtue of its order I did on the 24th day of September, 1929, at the hour of 5:20 p. m., levy upon Hupmobile sedan at 11919 East 55th Street as the property of the defendant and placed F. Kelly in charge as my custodian; and for want of time this writ returned November 29th, 1929, no money made, not satisfied, leaving my levy still in force.”

On September 25, 1929, the plaintiff brought an action in the common pleas court against Bernard Tbasco and others. On the same day a writ of attachment was issued by the common pleas court directed to the sheriff against the property of Tbasco.

The petition states that the Fidelity & Casualty Company executed a certain robbery bond to a banking company known as the Bank of Cleveland, in the village of Garfield Heights; that on the 29th of August, 1929, Bernard Tbasco and others held up the bank and robbed it of some $4,000, which the Fidelity & Casualty Company repaid to the bank under its bond, and the action was brought against the highwaymen with a view of recovering plaintiff’s loss. When the writ of attachment was placed in the hands of the sheriff of Cuyahoga county on the 25th day of September, 1929, he seized the Hupmobile car and other cars alleged to belong to the highwaymen. This particular car was in the Municipal Garage on East Fifty-Fifth street. It appears that the car had been seized by the police in the possession of Tbasco when he was arrested. When the sheriff made his levy, he obtained from the chief of police a release of the car, by which release the same was officially turned over to the sheriff. Notwithstanding the writ of attachment which was executed by the sheriff, the bailiff of the municipal court proceeded to make money on the execution previously served by him, by taking the necessary formal steps, and thereafter sold the Hupmobile ear at a public sale. The money which is now in his hands, the proceeds of sale, constitutes the subject-matter of the present controversy.

It is claimed by the plaintiff that the writ of execution, executed by the bailiff of the municipal court on the 24th of September, was of no avail, and that the proceedings were void, for two reasons:

First. That the manner in which the writ of execution was served by the bailiff was ineffective to create a lien upon the property for the reason that he did not seize the same, but merely attached to the ear a sticker announcing the execution levy.
Second. That he did not first obtain a release of the car from the police custody.

Assuming for the sake of argument that a proper levy is not effected by the bailiff by merely attaching a sticker announcing an execution levy, and that before the levy is made legally effective an actual seizure of the property must take place, we fail to see how, in view of the return of the bailiff heretofore set forth in full, any other court is at liberty to disregard the same in a collateral action. No steps whatsoever were taken in the municipal court by way of setting aside the return of the bailiff. According to the language of the return, a proper effective levy was made in accordance with law. By the tenor of the return an actual seizure of the property was made by him, and the same was placed in charge of F. Kelly as custodian to be kept for the bailiff. Until the return is changed or modified, it imports verity and cannot be disregarded in a collateral proceeding. In such collateral proceeding all other courts must assume the correctness of the return of the bailiff, and are not authorized to inquire into the actual facts with a view to determining whether the return told the truth.

It is claimed that at the time the bailiff made his levy by virtue of the writ of execution, this Hupmobile car was in the custody of the police, having been seized in connection with the arrest of its owner, and that therefore the car was not the subject of levy either in attachment or execution unless there was first obtained from the police officers in charge of the car a release of same from their custody. It is, of course, to be taken as admitted that when the police took charge of the Hupmobile they did so merely for safe-keeping, as it is not claimed or charged that the Hupmobile was in any way connected with the robbery, or that it was held in evidence in connection with the charge of robbery placed against its owner. The record does not disclose that the Hupmobile was being held by the police department under any legal process, but it does disclose that it was held merely for safe-keeping.

Section 11655, General Code, provides:

“Lands and tenements, including vested legal interests therein, permanent leasehold estates renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and liable to be taken on execution and sold as hereinafter provided.”

There is no adjudicated case in Ohio which holds that property taken by the police, not under legal process, but merely for safe-keeping while the prisoner is in custody on a criminal charge, is not subject to levy and sale.

In this connection it is well to point out that Section 1579-46 provides that:

“Every police officer of the city of Cleveland shall be ex-officio a deputy bailiff of the municipal court and shall perform from time to time such duties in respect to cases within the jurisdiction of said court as may be required of them by said court or any judge thereof.”

Since members of the police department of the city of Cleveland are by law regarded as ex oficio deputy bailiffs, it would seem a superfluous step to require the bailiff, while serving a writ of execution upon property held by the police department merely for safe-keeping, to first obtain a release from the police department. Assuming that the sheriff of the county made an arrest of a prisoner on a criminal charge, and at the same time took charge of an automobile then in the possession of the prisoner, for safe-keeping while the prisoner was held in custody, and that thereafter a writ of attachment or execution was placed in the hands of said sheriff, who proceeded to levy upon the automobile by virtue of said writ, would it then be contended that the sheriff must first execute a release from himself to himself before the levy would become legally effective? The mere asking of the question gives the emphatic answer that such a holding would be sheer folly. The act of the sheriff in serving the writ is in itself the clearest indication that he chose to release the same from his own custody for the purposes of the levy. Under the Municipal Court Code every police officer is regarded as a deputy bailiff. This very police officer who had charge of the Hupmobile could have been required under the language of Section 1579-45 to execute the writ of execution, and the mere fact that the bailiff or another deputy bailiff served this writ does not alter the situation.

It is nowhere claimed that the judgment obtained by Novario was not a valid judgment, nor is it urged that the writ of execution following said judgment was not a valid writ, and we are of the opinion, under the language of the return made hy the bailiff, that his levy was properly and effectively made. When the sheriff of the county sought to serve his writ of attachment issued by the common pleas court, the property he levied upon was already seized by the bailiff of the municipal court under a writ of execution. Under the law of Ohio this cannot be done.

In the case of Bailey & Co. v. Childs, Groff & Co., 46 Ohio St., 557, 24 N. E., 598, the court held:

“ Different attachments of the same property may be made by the same officer (Revised Statutes, Section 5535). But personal property held on attachment by one officer, is not subject to levy and seizure under writs in the hands of another officer. In order to attach property in the custody of an officer under legal process, unless the writ is placed in his hands, he must- be proceeded against as a garnishee. (Locke v. Butler, 19 Ohio St., 587). And this rule is not changed by the assent of the officer holding the property, to the subsequent so-called levy.”

Holding as we do, it follows that a decree must be entered in favor of the defendants.

Decree for defendants.

Vickery, P. J., and Sullivan, J., concur.  