11 P. 114 | Ariz. | 1886
This is an action against defendant, who is sheriff of Maricopa county, for alleged negligent acts and omissions, by which the plaintiff lost the collection of a certain debt due him from one Zent, and for a false return. The facts, so far as necessary to look at them, are these: On the fifth day of January, A. D., 1885, the plaintiff commenced an action in justice’s court against one William Zent, and on that day an attachment regularly issued in favor of the plaintiff against the goods and chattels of Zent, which was duly delivered to the defendant as sheriff, who on that day levied the same on a number of horses, harness, buggies and other property owned by Zent, and being his stock and outfit in a livery business in which he was then engaged. On the thirteenth of January the plaintiff obtained judgment against Zent for $215 and costs of suit, and on the succeeding day a writ of execution issued, directed to the defendant, as sheriff, and was duly delivered to him, with the usual command to make the money to satisfy the same out of the goods, chattels and property of Zent, and return the same in 15 days therefrom. The writ was returned by the sheriff February 13th thereafter, unsatisfied, and with the statement and return that he could find no property in Maricopa county out of which to satisfy the said execution.
The complaint in this case, in addition to the foregoing and other facts, states that “the defendant herein, N. M. Broadway, sheriff, as aforesaid, before the entry of judgment in said action as aforesaid, of M. Mooney against William Zent, in said justice court, without process or form of law, and without the consent of plaintiff in said action and plaintiff herein, and without receiving the undertaking required by law and by said writ of attachment, released the whole of said property so levied upon, as aforesaid, under and by virtue of said atachment, from the levy and seizure made by him under and by virtue of said attachment, and made return of said writ of attachment to said justice’s court
These facts were all admitted by the defendant on the trial, who defended on the ground that, at- the time the attachment was put in his hands, there was a chattel mortgage on the property executed by Zent to Bernard Goldman and J. L. B. Alexander, and that these gentlemen served notice on him that, unless himself or Mooney paid the amount claimed due on such mortgage, they would hold him responsible for any damage by reason of the levy of the attachment; that Mooney declined to pay the same, and he thereupon abandoned the levy, and released the property, on the ground stated in the third paragraph of his answer, that the risk was more than coiild be reasonably expected of the sheriff, the premises considered, by the plaintiff.
• The case was tried by Judge Pinney without a jury, who on May 21, 1885, directed judgment for the plaintiff for $240.40, and costs of suit. His findings of facts, so far as pertinent to this case, are as follows: ‘‘On January 5, 1885, the plaintiff herein commenced an action in justice’s court of Phoenix precinct, Maricopa county, Arizona, against one William Zent, to recover of and from said Zent the sum of $215 upon account. Summons and writ of attachment duly issued in such action, and were placed in
Was the judgment of the court below warranted, by the evidence? This is the only question before us raised by any assignment of error.
It is not necessary to look beyond the statutes of this territory in deciding this case. The statutes in relation to personal mortgages in certain cases provide that “a right of redemption shall remain in the mortgagor until the same
It is clear from these citations that in a ease like the present where there has been no foreclosure of the mortgage, the creditor has the option of proceeding in either one of the two ways indicated, viz., by seizing the entire property covered by the mortgage, paying or tendering the amount due thereon; or by simply levying on the right or equity of redemption, subject to the rights of the holder of the mortgage security. This option is for the benefit of the creditor, and to be exercised by him in such manner as he may think best in furtherance of his Interests. At one' time he may prefer one course, at another time the other; but the officer should not be permitted to compel
Such was the result of the action of the sheriff in this case, and it cannot be sustained. This officer, in effect, said to the plamtiff: “You must pay Goldman & Alexander what they claim upon their mortgage, or I will release the property from levy, return your attachment, and proceed no further under it;” and, on the refusal of the plamtiff to pay, such was Ms-action. Now, the plaintiff was under no obligation to pay the mortgage. He could do so if he saw fit, but there was no obligation resting upon him to do so. He could proceed for the right of redemption, which the evidence in this case shows was ample from which to secure payment of his claim. The conduct and communication of the plamtiff and his attorneys was a sufficient notification to the sheriff to levy upon and sell the right of redemption. We do not think any such notification was necessary. It was the sheriff’s duty, aside from any special instructions, to make effective the writ placed in his hands, and wMch he undertook to execute. He found certain property in the possession of the debtor, worth $3,000, upon which was a mortgage for $1,500; then followed the notification to the plaintiff to the effect stated; and at last we have a complete abandonment of the plaintiff’s process, by reason of wMch he lost his debt, and we find that the sheriff, according to his own statement, proceeded to levy upon the property by virtue of another writ of attachment, at the suit of some other creditor. Under the circumstances, it is idle to say the sheriff did his duty, and he must make good the debt that through his misconduct was lost to the plaintiff. We do not think there was any intentional neglect of duty on the part of the sheriff, but he seems to have relied too much on the advice of Goldman & Alexander, or paid too much attention to their threats. The judgment is warranted by the undisputed testimony in the case, and is affirmed.
These are some of the findings in which we think the court erred; for instance, the findings that the chattel mortgage is void. There is no testimony whatever in the ease upon which to base such a finding. Neither is it necessary
The judgment is affirmed.
Barnes and Porter, JJ., concur.