56 Neb. 434 | Neb. | 1898
Lead Opinion
In the county court of Sarpy county Richard Hogeboom sued Frank D. Miller. Hogeboom had judgment, and Miller appealed to the district court of said county, Upjohn and Catherine Miller becoming the sureties on his appeal bond. In the district court Hogeboom alleged in his petition that being the owner of a pocketbook containing seme $395 in money and some papers of little value he lost the same; that the said pocketbook and contents were found by a man named James Sullivan, who resided at Ilogeboom’s house; that Sullivan concealed the fact of his having; found said pocketbook and contents with the intention of stealing the same; that Sullivan then informed Frank I). Miller of the finding of said pocketbook and contents, and the latter, with the intent of stealing t'he same, induced Sullivan to transfer the pocketbook and its contente to him, Miller, knowing at the time that they belonged to the plaintiff; and that he had refused to deliver said pocketbook and the contents thereof to' plaintiff on demand, but had converted the same to his OAvn use. In answer to this petition Miller alleged that after Hogeboom lost his pocketbook he offered a reward of $200 in money to any one who Avould find and return him the pocketbook and its contents; that the offering of this reward coming to his knowledge, he found the pocketbook and its contents, retained $200 of the money therein in payment of the reAvard, and offered and returned the pocketbook and the remainder of its contents to the plaintiff. In reply to this answer Hogeboom denied the offer of reward and alleged that a justice of the peace of said county duly issued a search-warrant for said pocketbook and its contents, and the arrest of the said James Sullivan, and duly deputized and appointed and authorized Miller to serve such search-Avarrant; that he accepted the appointment, and Avhile acting as such deputized officer arrested Sullivan and took possession of the pocketbook and its
1. There was some evidence adduced on the trial which tended to show that Hogeboom offered a reward of $200 to any one who would find and return to him the lost pocketbook and its contents, and the evidence is undisputed that Frank D. Miller came into possession of the pocketbook and its contents by virtue of the search-warrant issued by the justice of the peace and which Miller was duly authorized by him to execute. If Frank D. Sliller could lawfully claim the reward, if one was offered, then the judgment of the district court must be reversed, because there was a conflict in the evidence as to whether a reward had been offered, and that issue should have been submitted to the jury for its determination.
2. The record presents three questions, the first of which is, has a justice of the peace any authority to deputize one to serve a search-warrant? Section 1094 of the Code of Civil Procedure authorizes a justice of the peace to 'specially depute any discreet person ox suitable age and not interested in the action to serve a summons or execution with or without an order to arrest the defendant or to attach property; but no express provision of statute exists conferring authority upon a justice of the peace to depute any person to execute a criminal process. At common law, however, a justice of the peace had no civil jurisdiction. (1 Blackstone, Commentaries 350.) And at common law a justice of the peace had authority to depute a person to serve a search-warrant. (4 Blackstone, Commentaries 291; Rex
3. A second question is whether one who recovers stolen property on a search-warrant which be has been specially deputed to execute is entitled to recover from the owner of the property a reward offered by him for its return. the doctrine of the courts seems to be that ministerial officers who recover and return to its owner stolen property are entitled to the reward offered therefor if the service performe by them was extra official; in other words, that a ministerial officer who, in the performance of bis duties as sucb, recovers and returns to its owner stolen property is not entitled to recover a reward offered by the owner for sucb recovery and return. (Means v. Hendershott, 24 Ia. 78; Warner v. Grace, 14 Minn. 364; Hatch v. Mann, 15 Wend. [N. Y.] 45; People v. Rainey, 89 Ill. 34.) It cannot be doubted, we think, that when a justice of the peace appoints some certain-person to execute a search-warrant, that that person is thereby invested with all the authority of a constable or sheriff in the premises. In the case at bar Miller accepted the appointment made by the justice, and be
4. But what authority had the district court to render a judgment against Upjohn and Catherine Miller, the sureties on Miller’s appeal bond? They were not parties to this suit.' They did not appear in the action, and we think the district court was without jurisdiction over them. (Selby v. McQuillan, 45 Neb. 512.) But throe parties have united with Frank I). Miller in the petition in error filed here; and since the petition in error, being-joint, cannot be sustained as to Miller, it cannot be sustained as to the sureties or. either of them. (Small v. Sandall, 45 Neb. 306; Harold v. Moline, Milburn & Stoddard Co., 45 Neb. 618.)
JUDGJI ENT ArrmJlKD.
Dissenting Opinion
dissenting.
No principle of public policy forbade the defendant to claim and receive the rewanl. lie was not an officer, nor charged with any duty-in relation to the enforcement of the criminal laws. His appointment by the justice to execute the search-warrant was unauthorized and void. A justice of the peace in this state possesses neither statutory nor common law authority to direct criminal provees to private persons. The fact that Miller assumed to act under the writ, would not, in this case, estop him from asserting that he did not act in an official capacity, nor bring’ him within the reason of the rule which denies to public officers a reward for performing the duikis imposed upon them by law. The judgment of the district court is erroneous and should be reversed.