14 Wash. 582 | Wash. | 1896
The.opinion of the court was delivered by
Defendant Niñear was sheriff of Spokane county. Defendants Nethercutt were husband and wife and the owners of a mortgage made by one Emery Fish. The other defendants were sureties upon the official bond of said sheriff. The mortgage held by the Nethercutts was placed in the hands of the sheriff for foreclosure, and by virtue thereof the property in dispute was taken into his possession as that of the mortgagor Emery Fish. The plaintiff, the wife of said Emery Fish, brought this action to recover damages for the conversion of the property, claiming that it belonged to her and that her husband had no interest whatever therein, at the time it was mortgaged or at the time when it was taken by the sheriff in the proceeding to foreclose. In plaintiff’s complaint the property was alleged to be of the value of $250. The trial of the issues made upon this complaint resulted in a verdict and judgment for the plaintiff in the sum of $628, beside costs.
Two reasons are stated in the brief why this judgment should be reversed, (1) that the complaint does not state a cause of action; and (2) that the court gave an erroneous instruction to the jury as to the measure of damages. The claim that the complaint is insufficient is founded upon the fact that it appears upon its face that the plaintiff was a stranger to the process under which the sheriff was acting when he seized her goods. And it is contended that the action of the sheriff in taking the goods of a stranger to the process under which he was acting was not such an
The distinction which was there attempted to be drawn and which seems to be founded upon a correct course of reasoning, was that when an officer was called upon to act in his official capacity, the sureties upon his bond would be liable for such action, even though he should so depart from the command of the process under which he was acting as to make his act thereunder a pure trespass; but that, when there was nothing which called upon him to act in his official capacity, the fact that he assumed to do so in violation of law would not warrant the holding that his action was by virtue of his office. In other words, the sureties upon the official bond of an officer are liable for a mistake of fact made by the officer in attempting to discharge a duty which he is called upon to perform by virtue of his office, but are not liable for a mistake of law by reason of which he assumed tb act as an officer, when the undisputed facts show that he was not called upon to act in his official capacity. This
The court instructed the jury that in determining the damage to which the plaintiff was entitled they might consider the value of the property and the circumstances under which it was taken, and also any sense of wrong suffered and feeling of humiliation and disgrace engendered by the wrongful taking of the property. Whether or not such would have been a proper instruction if the complaint had alleged facts tending to show that the taking was writh such unnecessary violence as to show malice, or even as to show an intent to harass or oppress the plaintiff, we are not now called upon to decide. It was only alleged in the complaint that the taking was wrongful and unlawful, and under such an allegation the value of the property when taken, or at such time as the plaintiff may elect between the time of taking and the bringing of the action, with interest thereon, is the measure of damages. It is claimed on the part of the respondent that this instruction must be interpreted in the light of another one given by the court to the effect that they could give nothing by way of punitive or exemplary damages, but in our opinion it did not state the law,
The judgment will be reversed and the cause remanded for a new trial.
