69 P. 285 | Idaho | 1902
Lead Opinion
— This action was commenced by the respondent, as plaintiff, in the probate court in and for Boise county, to recover damages against the appellant as sheriff of Boise county for the unlawful seizure under execution and sale of certain chattels, to wit, twenty-four cords of wood, valued at eighty-four dollars, and for damages for retention of same in the further sum of fifty dollars; and upon trial in said probate court a judgment was rendered in favor of the defendant, from which the respondent appealed to the district court, and upon a trial de novo in the district court judgment was rendered in favor of the respondent for the sum of sixty-nine dollars and sixty cents damages, and costs taxed at nine dollars and ten cents. Both parties expressly waived a jury
One of the errors assigned and relied upon is that the lower court erred in holding that the plaintiff was not estopped from claiming said cordwood by reason of declarations, made by him just immediately preceding the seizure of said cordwood by the sheriff, to the effect that he had sold the property, and that said wood was the property of one John Eost. Said wood was seized by the appellant, as sheriff of Boise county, under an execution against John Eost. The admitted evidence in the case, and about which there is no conflict, is that within a few days of said seizure the respondent Lick stated to divers persons that he had sold said wood to the execution defendant, John Eost. The evidence also shows that said Eost had hauled a good portion of said wood from where it was cut to a point near Idaho City, from which latter point he was delivering it to customers. The respondent not only declared repeatedly that he had sold said wood to said Eost, but stated that he had done so at the price of one dollar and seventy-five cents per cord, and had also stated that he had sold it to said Eost because his wagon was not strong enough to haul same. The admitted evidence also shows that respondent, Lick, stated and declared to H. L. Fisher, the attorney for the plaintiff in the execution, four or five days prior to the levy thereof, that he had sold said wood to said Eost; and the evidence indisputably shows that the sheriff levied upon said wood as the property of said John Eost by direction of the execution plaintiff, after being informed of the said declarations of the respondent, Lick. Under the above circumstances we are of the opinion that the respondent, Lick, is estopped from asserting ownership in said cordwood as against the appellant sheriff and as against the execution plaintiff. It is evident that the plaintiff in the execution and the said sheriff relied upon and believed the said declarations of the respondent, Lick, and acted upon them. It is argued by counsel for respondent that respondent was under no obliga
The judgment is against law and against the evidence, and the same should be reversed, and it is so ordered, and the cause remanded to the district court, with instructions to enter judgment dismissing said action. Costs awarded to appellant.
Concurrence Opinion
Concurring. — I agree with my associates that this ease should be reversed on the record before us, but I cannot concur in the order that judgment shall be entered for appellant. Under the provisions of the constitution of this ■state all parties litigant are entitled to a trial by a jury wherein questions of fact arise. There can be no question but that the issues involved in this ease could be submitted to a jury, and on the demand of either party it would be the duty of the trial court to do so. It is true that a trial by a jury was expressly waived; but when this court reverses the judgment, and remands the case to the lower court for further proceedings in harmony with the opinion, it is then for the district court to dispose of the case. It is not for this court to say how many trials shall or shall not be had in the court below. In my view of the case, this court has no authority to order judgment entered in the court below in cases of this character.
