9 Nev. 234 | Nev. | 1874
Ily the Court,
Respondent’s hay, in the field, was attached in a suit ultimately decided in his favor. Pending such decision, the sheriff baled and sold such hay for the sum of twelve hundred and seventy-five dollars; or twenty-five dollars per ton. In this action, respondent claiming such course to be unlawful, seeks to recover the market value of the hay at the date of his demand upon the officer, which was made after the determination of the original suit, and some months subsequent to the sale. The jury were instructed if they found for the respondent, to find such price, deducting therefrom
What is, or is not, perishable property, is a question which has been answered with considerable latitude; and generally, whether by express statutory provision or judicial interpretation, the elements of cost in preserving or danger of waste or deterioration in keeping have weighed in favor of sale. Thus in Alabama, a statute permitting a sale, prior to judgment, of property, “ clearly of a wasting and perishable nature,” or which would “be likely to waste or be destroyed by keeping, ” was held to allow the sale of slaves attached. Millard's Adm’rs. v. Hall, 24 Ala. 209. In most of the states of this Union, however, the statutes are either more liberal in language or more properly susceptible of a latitudinarian construction, than in this. The statute of Nevada provides: “If any of the property attached be perishable, the sheriff shall sell the same in the manner in which such property is sold on execution.” Such property is sold on execution “by posting written notice of the time and place of sale in three public places of the township or city where the sale is to take place, for such a time as may
It might probably, frequently does, happen that the expense of feeding or otherwise keeping or properly caring for live stock under attachment, is more than its value; and so with goods of divers kinds and many varieties of personal property; but the section under which the sheriff acted has made no provision for sale in any such case. If in any such, relief is desired, it can be had upon proper showing, under section 595 of the Practice Act. Here, perhaps, the respondent was benefited by the sale of his hay; nevertheless the officer was acting wrongfully in selling it, provided he could with ordinary and reasonable care under the surrounding circumstances have preserved it. The jury have found that he could have so done; they have also found that for its preservation baling was necessary. . The only ques-
This, by the evidence, appears to have been twenty-five dollars per ton, or as stated in gross in the answer, twelve hundred and seventy-five dollars ; deducting therefrom the price of baling, which the jury find as a necessary expense to the preservation of the hay and .proven to have been five dollars per ton, and amounting to two hundred and fifty-five dollars, there remains the sum of one thousand and twenty dollars, which the respondent should have recovered in this action, together with interest on such sum from the date of conversion. As the respondent is willing to have the judgment modified without reference to this question of interest,
Let the principal judgment then be modified by deducting therefrom such sum as will reduce it to one thousand and twenty dollars, and let that amount stand nunc pro tuncas the original judgment. The district court will make the necessary orders to carry out the judgment of this Court.
The respondent will pay costs of this appeal.