187 P. 1022 | Mont. | 1920
delivered the opinion of the court.
As appears from the record, appellant, Kelley, was sheriff of Missoula county, and one W. B Coffey was his deputy in charge
At the close of respondent’s case, appellant moved for a judgment of nonsuit, which motion was overruled. Testimony on behalf of appellant was introduced, and the trial resulted in a verdict for $800, and judgment was entered accordingly. Appellant moved for a new trial, which motion was denied. This appeal is from the judgment and from the order denying a new trial.
1. Appellant’s first specification is that the court erred in not sustaining his objection to the introduction of any testimony, on
Section 3167, Kevised Codes, under the head of “Fees of Sheriff,” provides: “For the expense in taking and keeping pos
A writ of attachment runs to the sheriff of the county in which the property of the defendant in the attachment suit is situated, and requires him to “attach and safely keep” the same or so much thereof as shall be necessary. (Rev. Codes, sec 6660.) If, in making the levy, the sheriff concludes that the property attached is of such a nature or is so situated as to require the services of a keeper, it is the duty of the sheriff to secure the necessary order, either directly or through counsel for the attaching creditor, in order that the keeper’s fees may be properly included as taxable costs in the case. However, the failure of the sheriff to secure such an order will not relieve him from personal liability, where he has in fact made his appointment.
The appointee is under no obligation to determine as to whether such an order has been secured. (Foster v. Rhinehart (City Ct.), 11 N. Y. Supp. 629.) It is presumed “that official duty has been regularly performed.” (Sec. 7962, subd. 15, Rev. Codes.) Having performed services for the sheriff, under an appointment, the keeper looks to the sheriff for compensation, whether it comes from the sheriff directly or indirectly, and, if it transpires (that the sheriff has neglected to secure an order which will entitle him to charge the expense as taxable costs in the attachment suit, the sheriff cannot evade responsibility by pleading his own dereliction, or that of his deputy. It is a maxim of jurisprudence that, “where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened must be the sufferer.” (Rev. Codes, sec. 6211.)
2. But it is contended that the sheriff cannot be held liable,
The ease of Chenowith v. Cameron, 4 Idaho, 515, 42 Pac. 503, is on all-fours with this, and there the court said: “Plaintiff was put in as keeper by one Hardesty, a deputy, * * # at an agreed compensation of $3 per day, and so remained in possession and charge * * * as keeper [14 months]. * * * During all this time the defendant was sheriff of said county, and must of necessity have known of the whole transaction between his deputy and the plaintiff. To presume otherwise would be to impeach both the integrity and capacity of the sheriff. * * * It is now claimed by defendant that, as plaintiff was employed by his deputy, he [defendant] is not liable for his fees. What was this sheriff doing during the fourteen months that plaintiff was acting as keeper of said property? Is it possible the sheriff of Shoshone county would hold property of this magnitude and value under attachment for a period of fourteen months without knowing who was the keeper, or what his compensation was to be? * * # ‘Qui facit per alium facit per se’ is a maxim peculiarly applicable to cases of this kind. Again, the acquiescence for a period of fourteen months by the sheriff in the service of plaintiff was a palpable ratification of the act of his deputy in employing plaintiff.” The court closes the opinion with a statement that an examination of the authorities is hardly necessary, as “the universally recognized rules of common honesty are sufficient for the decision of this ease. ’ ’
In Foster v. Rhinehart, supra, the court said: “Now, if the deputy, in the discharge of his duty, deems it wise to employ keepers to aid him to ‘safely keep’ the attached property, he is,
The supreme court of Nevada, in Allen v. Ingalls, 33 Nev. 281, Ann. Cas. 1913E, 755, 111 Pac. 36, 114 Pac. 758, followed the case of Chenowith v. Cameron, cited.
Section 350, Revised Codes, provides that “in all cases not otherwise provided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal. ’ ’
It is true that in the single case cited by appellant (Krum v. King, 12 Cal. 412) it was held that a deputy sheriff who seizes property under an attachment is not authorized, by virtue of his office, to bind the sheriff by contract for the payment of keepers’ fees. The opinion was written in 1859, and, after a short statement of the facts, consumes about five lines of the report and cites no authorities. It is supported neither by the weight of authority nor by those “universally recognized rules of common honesty” referred to by the supreme court of Idaho, and we find no case in which the rule there laid down is followed.
So much for the first five assignments of error, all of which refer to the questions above discussed.
3. The sixth and seventh assignments pertain to the admission of evidence as to the value of the services.
Respondent sued on quantum meruit. He testified to a
Having testified to an express contract fixing the compensation
4. The tenth assignment, next taken up for argument, is that
5. Error is assigned on the giving of certain instructions drawn in conformity with the theory of the sheriff’s liability for the act of his deputy. As his liability is uncontrovertible, we find no error in instructions 1, 2 and 4.
6. Instruction No. 3 reads as follows: “The jury are instructed
It is contended that this instruction conflicts with instruction No. 2, which advised the jury that, if they found that the re
The argument would be more appropriate and efficacious to a jury on the question of the amount to be awarded plaintiff than on an objection to the instruction. Under the instructions given, a jury might have found that respondent surrendered possession of the property on April 7, 1914, and was therefore entitled to compensation only from January 15 to April 7, had the jurors been of the opinion that the facts warranted such a finding.
While appellant does not formally assert that the verdict is excessive, he contends that, as the labor performed was not
While it is true that Ramage testified, “When I was appointed, under the order of the court, I took charge of all of the property of the Iron Mountain Tunnel Company,” and “this property which is enumerated in plaintiff’s exhibit 1 is a part of the property I took charge of as receiver,” and “as receiver I appointed Mr. Daly as superintendent,” on cross-examination he stated: “I took charge of the property subject to all attachments and encumbrances. I consulted counsel and found what my rights and his rights to the property were. I did not attempt to supersede Mr. Daly’s authority there as caretaker.”
The jury had the advantage of seeing the witnesses on the stand in order to determine as to their credibility, as did the court, in passing upon the motion for a new trial; and evidently the jury took into consideration, in determining the amount to which respondent was entitled, the fact of his dual employment, for, although the only evidence on the subject fixed his reasonable compensation at $3 per day, the jury apparently allowed him something under $2 per day.
We find no substantial error in the record. The judgment and order denying a new trial are affirmed.
Affirmed.