134 Ky. 776 | Ky. Ct. App. | 1909
Opinion of' the;'court by
— Affirming.
In 1896 the Eobfert Mitchell Furniture Company and the Geo. F. Otte Company filed suits in the Kenton Circuit Court against L. S. Hatch, wherein they sought to recover' of 'him certain moneys which they
“We undertake to indemnify John O’Donnell, sheriff of Kenton county, Kentucky, against any damage he may sustain by reason of the levy of the attachment in this action. Ph. Dine, P. Dine, by H. II. Dine.”
After the indemnifying bond above set out had been executed, the deputy' sheriff, having the orders of attachment to be served, called upon William G-oebel, attorney for plaintiffs for instructions, and was directed by him to levy “on everything in sight” at the Hatch residence. Armed with this instruction, the said deputy, accompanied by a representative from the house of each plaintiff, went to the residence of Hatch, and in the absence of both himself and his wife levied upon and took therefrom all of the household goods and effects therein. When the property was removed from the Hatch residence, it was stored by the sheriff in a storage room in Covington. Each of the plaintiffs endeavored to hold all the property attached as belonging to L. S. Hatch, while Maggie Platch, his wife, sought to have the attachment discharged as to that part of the household goods which had not been sold by'plaintiffs, and claimed the property, which she thus sought to have discharged from the attachment, as her own individual property. This litigation, between Mrs. Hatch and the attaching creditors, was from the start spirited, and the attempt on the part
A great many reasons are urged why the judgment should be reversed, and we have given to each a careful consideration. The suit filed by Maggie Hatch, wherein she sought to recover of the sheriff and his sureties on his official bond damages for the wrongful seizure and withholding of her property, are identical in all respects, except that, in one she charges that certain property was taken by the Mitchell Company and in the other by the Otte Company. She alleged that, prior to the taking of her goods by
'After'filing various preliminary" motions, Phillip Dine answered. The plaintiff, Mrs: Hatch, was called upon to elect whether she would-prosecute her-claim against Dine, the surety in the indemnifying-bond, or the appellees,- the -sureties' on-the sheriff’s bond, and she elected to proceed against the -latter. The issue between plaintiff, Mrs.'Hatch, and'the- appellees having been tried, with the result above indicated, and appellees having' satisfied said-judgment, they, appelleés,'filed an amended cross-petition against appellant, 'Phillip Dine;- setting out in detail the trial and ’judgment rendered in -favor of Mrs. Hatch, the satisfaction of' same by d-hein, ■ and prayed ■ judgment against- him for the amount which they-had'so paid. ■To this-cross-petition he answered, and -charged that the sheriff- had-acted'wantonly, willfully,'and malici‘Ous-ly,- 'and contrary to the instructions and in utter disregard-Of the direct ‘comMand of the plaintiff. Is
The trial court held that as appellant admitted that his principals had caused the orders of attachment to be issued and levied, but alleged that the sheriff, in levying same, had acted wantonly, willfully, maliciously, and contrary to their direct instructions, the burden rested upon him to establish this fact. Of this ruling we think he may not complain; for, unless the sheriff did proceed in the manner set out in his answer, the plaintiffs, who procured the order of attachment and directed its levy, would clearly be liable. The record shows that the employes of the attaching creditors who accompanied the sheriff when he made this levy wanted to take the property, or portions thereof, out of the hands of the sheriff and across the river to their respective places of business in Cincinnati. This the sheriff refused to permit them to do, and while there is some testimony tending to show that certain articles were pointed out by them as not having been sold, and which they did not want to take, when notified that their lawyer had instructed him to make a clean sweep, “take everything in sight,” they made no objection, and the sheriff, following his instructions, took everything.
The decided weight of the evidence is against the contention of appellant that the sheriff acted wantonly, willfully and maliciously, and against the wishes and direction of the plaintiffs in levying the attachment; and the conduct of the attaching creditors during the extended litigation over this property between them and Mrs. Hatch shows that they were endeavoring to hold all the property which had been
The proof abundantly supports the finding of the jury, and while complaint is made that their verdict was not in form, still as the amount was not in controversy, a finding on the part of the jury in favor of plaintiff was sufficient to support the judgment predicated thereon. The instructions plainly told the jury the amount which the cross-petitioners were entitled to recover if they found for them.
In the case of Cooper v. Poston, 1 Duv. 92, 85 Am. Dec. 610, this court held, in an action on a notejwliere the only defense was a plea of usury, that a verdict, “we, of the jury, find for the plaintiff,” would support a judgment for the amount of the note and interest. And in the cases of Brannin v. Foree, 12 B. Mon. 506, and Jackson v. Hill, 58 S. W. 434, 22 Ky. Law Rep. 563, this principle, that what can be made certain is certain, was recognized and applied. In 29 Am. & Eng. Ency. of Law, 1021, the rule is thus stated:
“Where the amount is-not actually in issue, a simple finding for the plaintiff or the defendant is usually sufficient, without specifyingany particular sum.” Here appellant denied all liability. The amount
We next come to consider the question as to whether or not appellees might proceed against appellant by cross-petition. Subsection' 3 of section 96 of the Civil Code of Practice defines a cross-petition to be "'the commencement of an action by a defendant against a codefendant, or a person who is not a party to the action, * ^ * and is not allowed to a defendant except upon a cause of action which affects, or is affected by, the original cause of action.” The test, then, as to whether or not they might properly in this case proceed by cross-petition is: Was the action asserted by appellees affected by the cause of action asserted by Mrs. Hatch against O’Donnell? Clearly it was. In the suit of Mrs. Hatch against O’Donnell, she pleaded the execution of the indemnity bond, but for the execution of which the attachment would not have been levied at all. Therefore the execution of the indemnity bond caused the levy of the attachment which resulted in the dámage to Mrs. Hatch. Clearly the causes of action are so closely and intimately connected that appellees were justified in proceeding as they did. In the case of Gibson v. Ky., etc., Ben. Society, 8 Ky. Law Rep. 520, a case somewhat similar to the one under consideration here was presented. There the society, without authority, issued a certificate of membership, in which it contracted to pay the amount due upon the death of a member to one other than a member of his family. The member died, and the society paid the amount due to the named beneficiary. Under its charter the death benefit belonged to the widow and children of the member, and they sued the society
Several authorities are cited and relied upon by appellant in support of his contention that this is not such a claim as might be asserted by cross-petition. But a careful analysis of those cases shows that they are not in point. The case of Royse v. Reynolds, 10 Bush, 286, was an equitable proceeding, wherein one Fee sought to enjoin Boyse from enforcing a. judgment against him on the ground that he was surety only and had been released from liability by lapse-of time. Boyse, by cross-petition, then sued the sheriff, Beynolds, for breach of duty by the latter
During the progress of the trial, and after the evidence had in part been introduced, appellant offered to file an amended answer, to the filing of which appellees objected. The court sustained the objection and refused to permit the amendment to be filed, and of this ruling appellant now complains. The Code gives to the trial judge a broad discretion in permitting and refusing amended pleadings to be filed, and it is at times difficult to determine when, in pursuance of justice, this discretion on the part of the trial judge should be interfered with. The issue, as made rp and upon which the parties had gone to trial, was
The only remaining question which we deem it necessary to consider is the right of the sureties on the sheriff’s bond to be substituted or ¡subrogated to the rights of the sheriff on the indemnifying bond.
In the case of Philbrick v. Shaw, 61 N. H. 356, we find a set of facts almost identical with those here presented. There the sureties -of a deceased deputy sheriff had been compelled to pay for his default in not making proper application of the proceeds of an execution. They sought to be substituted to his rights against the creditor by whose directions the default was caused, and to resort to a bond taken by him from the creditor as an indemnity against the consequences of such default. In disposing of their right so to do, the court said: “The contention of the defendant is that there is no privity of contract or obligation between the plaintiff and himself; that the condition o? the bond was to save Haynes harmless, and not his sureties; and that, inasmuch as neither Haynes nor his -estate has sustained any loss, the contingency upon which the obligation depended lias not happened, and there has consequently been no breach of the bond. This defense is both ingenious and novel; but it lias no foundation in principle or upon authority. The right of subrogation does not rest upon c-ontraH or privity, but depends upon principles of natural jus
The same principle is recognized and upheld in People v. Schuyler, 4 N. T. 176, in Skiff v. Cross 21 Iowa, 459, and in Blalock v. Peake, 56 N. C. 323.
In Meyer Bros. Drug Co. v. Davis, 68 Ark. 112, 56 S. W. 788, a constable wrongfully attached and sold personal property. The owner of the property recovered a judgment against the 'constable for its value, which had been paid by his sureties. The plaintiffs in the attachment then gave to the constable a note for the amount of the judgment the owner had
As above stated, we have not, so fax*, beexx called upon to decide a case in all respects similar to tbe one at bar; but this court has frequently been called upon to apply tbe doctrine of subrogation, and it has uniformly held that, where one lias been compelled to pay a debt for which another was primarily liable, tbe former is entitled to be subx'ogated to tbe rights of tbe creditor. This was tbe rule announced in Finn v. Stratton, 5 J. J. Marsh, 364; Perkins v. Scott, 7 Ky. Law Rep. 608; Ely v. Harvey, Keith & Co., 6 Bush, 620; Ogden v. Totten et al., 34 S. W. 1081, 17 Ky. Law Rep. 1390; Nesbit v. Wood, 56 S. W. 714, 22 Ky.
In each of the foregoing cases the principle that one who has paid a debt for which another was primarily liable was entitled to be subrogated to the rights of the creditor was fully recognized and upheld. In the case at bar the sheriff had executed a general official bond as a guaranty to the public and the commonwealth that he would faithfully and according to law discharge the duties of his office. As a part of those public duties he was required to execute the orders of the court that came to his hand. When the plaintiffs, in the original suits, caused the orders of attachment to be issued and placed in his hands, it at once became his duty to levy same upon any property of the defendant that he could find that was subject to execution. The plaintiffs in the suit desired that he should levy upon all the property of the defendant which the sheriff might find in defendant’s home. This the sheriff declined to do until the defendants had executed the indemnifying bond as above set out. The levy having been made, and the right of the sheriff to take the attached property being contested it was. found that he had acted beyond his lawful authority in so doing, and the .sureties on his bond were compelled to pay the judgment recovered against him because of this illegal levy. They at once became creditors of the sheriff to that extent, and, under the well-established rule announced by all text-writers and by courts of last resort generally, they were entitled to the benefit of any security which be had taken from the plaintiffs guaranteeing him
Perceiving no error in the .conduct of the trial prejudicial to the substantial rights of appellant, the judgment is affirmed.