Elder v. Frevert

18 Nev. 446 | Nev. | 1884

By the Court,

Belknap, J.:

Elder recovered judgment against defendant Williams, as sheriff, for the recovery of a wagon and two horses exempt from execution, together with damages for their detention. The cause was appealed, and the judgment of the district court affirmed. Bending the appeal, Williams retained the possession of the property. The present action was brought for the recovery of damages for the detention during the period of time intermediate the rendition of the former judgment and the return of the property. The property was taken and held by defendant Williams at the instance of Frevert, Wagner and Boles, under process of attachment issued in actions severally commenced by them against Elder. Appellants claim that this action will not lie against the defendants other than Williams, because they are not guilty of trespass against the property of plaintiff. It has long been settled that an execution creditor, under whose direction a levy is unlawfully made, is liable, and may be sued with the sheriff in an action for the trespass. In such cases both are wrong-doers. (Marsh v. Backus, 16 Barb. 483; Allen v. Crary, 10 Wend. 349; Acker v. Campbell, 23 Wend. 372; Flewster v. Royle, 1 Camp. 187.) In the actions commenced by Frevert, Wagner and Boles, judgments were recovered against Elder. These judgments were pleaded by way of counter-claim to this action. The defense was disallowed. One of appellants’ exceptions involves the ruling upon this point.

The statute exempts two horses and their wagon for the purpose of enabling the debtor to earn a living. The plaintiff has been deprived of the means of earning a living by the use of his team by the wrougful detention for five hundred and one days. If the judgment recovered for this detention can be applied to the payment of the debts of the claimant, the benefits intended by the exemption laws would be unavailing to the debtor. The law must be construed so as to protect him in the possession and use of his team, as well as in. the property itself. This must be done by holding the judgment recovered for damages for the conversion not subject to counter-claim. At the trial the district court admitted in evidence the judgment roll and statement on motion for new trial in the case of Elder v. Williams, 16 Nev. 416. A general objection was made to the introduction of this evidence. If it was admissible for any purpose the objection is ineffectual. Parol evidence was first introduced for the purpose of establishing the interest of the defendants in the subject-matter of the litigation, and to show that they controlled the proceedings of the former suit. They were then parties to the litigation within the principle that they were concluded by the former judgment. Among the issues determined by that judgment was that of the character of' the property. This was an issue in the present case, and the former judgment was conclusive evidence upon that issue, and admissible for this reason. It is unnecessary to consider the admissibility of the records further, because the other facts were established by other testimony.

It is urged that the district court erred in allowing the value of the use of the team and wagon as damages during the period of detention. The measure of damages in cases of this nature is compensation to the injured party for the-loss of the use of his property. The team and wagon were valuable for a present use. Interest on the value of property wrongfully taken, ordinarily affords an indemnity to the injured party for the detention of .his property; but in this case it is apparent that this rule would not afford compensation. The damage suffered by the detention was the value of the use of the team and wagon, and the court was correct in adopting this measure of damages. (Allen v. Fox, 51 N. Y. 562; Williams v. Phelps, 16 Wis. 80; Crabtree v. Clapham, 67 Me. 826.) In this connection it is said that since the judgment in Elder v. Williams was fully satisfied upon the fourteenth day of April, 1882, by the return of the property and the payment of interest to that date upon the damages assessed, the plaintiff has been compensated for the detention, and this action cannot be maintained. The damages assessed in that ease for the detention of the property were for the period of time between the seizure and the trial. The interest paid was the penalty imposed by the law for delay in the payment of these damages. At the timé of the trial of the former suit the law could not presume, nor could the plaintiff have proven, that the detention would have continued. The detention from the time of the trial of the former cause was a new trespass, and the damage a fresh cause of action.

Judgment is affirmed.