For the plaintiff-respondent, Harry W. Sherman.
For the defendant-appellant, Lester J. Kramer.
Before Justices Case and Donges.
The opinion of the court was delivered by
CASE, J. Plaintiff sued Caruso, a constable (and others), upon an alleged conversion of moneys, the proceeds of a chattel mortgage sale. Judgment went against Caruso, and he alone appeals. We shall dispose of the case strictly as briefed and in reliance upon the rule that the Supreme Court will not review the findings of a District Court upon questions of fact beyond inquiring whether there was legal evidence upon which the findings may be based.
There was proof upon which it could be found that on December 11th, 1936, plaintiff recovered a judgment against Anthony Salpietro for $405.07, damages and costs, in the District Court of the Second Judicial District of the county of Hudson; that execution was forthwith issued and levy made, and that on January 11th, 1937, sale was had thereon and the goods were sold to plaintiff for $75 subject to the then existing liens, the said $75 not being paid in cash but by a credit on the execution; that the only claims which could be prior were (1) a chattel mortgage, not challenged herein, under which the goods were subsequently sold in foreclosure by defendant, Caruso, as constable, from which Caruso received $685 gross, reduced to $236.67 (the sum now litigated) by the payment of the chattel mortgage and the expenses of sale, and (2) the claim of Austin Nichols & Company, Incorporated, disputed by plaintiff; that the claim
of Austin Nichols & Company, Incorporated, consisted of a judgment for $105.30 against Salpietro and others entered November 23d, 1936, in the First District Court of Jersey City upon which execution issued, by virtue of which there was an attempted levy on November 27th, 1936, followed by a purported sale on December 11th, 1936, for the consideration of $1 to Austin Nichols & Company, Incorporated, that the constable who undertook to make that levy did not make actual seizure of the goods and did not annex to the execution either an inventory of the goods levied upon or a statement of the actual time of making the levy and did not make return of the execution to the court or file the execution with the clerk of the court from which it issued within thirty days from the time the constable received it; and that at or after the purported sale of the chattels under the Nichols levy the purchaser thereat did not actually or constructively enter upon the possession or control thereof, but that the judgment debtor continued to operate, in his own interest, as theretofore, the merchandising business, the stock and fixtures of which were the subject of the levy and sale; that the constable did not prepare or execute a bill of sale to Austin Nichols & Company, Incorporated, until February 26th, 1937, after the events herein sued on had occurred and after the instant suit had been started and summons served; that Caruso was, at all times, on notice as to plaintiff's status and rights, and that demand had been made upon him before any of the surplus funds from the chattel mortgage sale had been disbursed for the payment thereof to plaintiff. The dispute is chiefly on the question whether Caruso was justified, on February 9th, 1937, in paying, from the surplus moneys remaining in his hands, the sum of $79.67 to Austin Nichols & Company, Incorporated, on account of its "judgment."
Appellant's first point is that "the trial court erred in giving judgment for the plaintiff for the reason that there was no proof that the plaintiff had title to the goods, chattels or moneys alleged to have been converted by the defendant, John Caruso, and if he had title it was to only part of the chattels."
We think that the foregoing recital of the facts shows at least colorable title in plaintiff to the chattels before the mortgage sale and an equal right to the surplus in funds arising from that sale and remaining after payment of the chattel mortgage and the expenses of the sale. The constable in the Nichols case clearly failed to make return of the execution to the clerk, with the record of what he had done up to that time, within the thirty days allowed by section 189 of the District Court act and to comply with the requirement, contained in the one hundred and ninety-ninth section of the same act, that he annex an inventory in writing and the levy, with a statement of the actual time of making the levy, over his signature, to the execution.
Defendant leaves us confused as to the position in which he would place the Nichols company. That corporation appears as a judgment creditor with a defective levy and a faulty return; a purchaser for an unpaid and, so far as appears, uncredited consideration of $1, having never had actual or constructive possession of the goods and with no bill of sale delivered or executed until a day more than two weeks after the summons in this suit had been served on the appellant. Was the $79.67 paid to it as the owner of the equity in the chattels or as a judgment creditor with a levy under a live execution? The execution seems to have been thoroughly exhausted so far as these chattels were concerned. Under it there had been a sale, if the proceeding really was a sale; and appellant's brief, under the first point, names the Nichols company a purchaser. But if it occupied that status, what further jurisdiction did the Jersey City District Court have over the excess moneys from the foreclosure sale? The Nichols interest would be that of owner, not of judgment creditor with the lien of a levy. Why did the judge of that court make an order upon Caruso, who was not ...