260 P. 116 | Mont. | 1927
On July 13, 1925, George W. Cowan commenced an action against Della Noel Jones, and therein procured the issuance of a writ of attachment. The sheriff, in pursuance of the writ, on that day, served a copy of the writ upon C.W. Noel and demanded of him a statement, in response to which Noel made answer that he had in his possession and under his control under contract with the defendant certain personal property consisting of 242 grown sheep, 57 lambs and the proceeds of the sale of 1281 pounds of wool which had been sold at the time of levy. The sheriff certified that he received the share *260 of the defendant in the proceeds of the wool, amounting to $496.40.
The record discloses that in the year 1924 Noel entered into a contract with Mrs. Jones whereby he was to take into his possession and care for 242 sheep belonging to her, on shares, for a term ending September 1, 1926. Noel was in possession of these sheep under the contract when the attachment was made and continued in their possession until September 1, 1926. On that day he notified the sheriff and Cowan that his contract with Mrs. Jones had expired and that he would not take care of nor keep the sheep any longer and he also notified Mrs. Jones that his contract with her had expired. Noel then had in his possession 234 sheep, which were the ones he received from Mrs. Jones in 1924, less loss. Neither the sheriff nor Mrs. Jones took any affirmative action. Upon receipt of notification from Noel, Cowan, on or about September 2, requested Noel to retain and keep the sheep, promising that in the event that he, Cowan, won his suit against Mrs. Jones, which was still pending, he would pay Noel for keeping them. Thereupon Noel "agreed to and with said George W. Cowan to keep and take care of said sheep, and did in pursuance of said agreement take care of and keep said sheep" until March 21, 1927. On February 16, 1927, Cowan recovered a judgment against Della Noel Jones and on March 12 procured the issuance of an execution upon the judgment, which he placed in the hands of the sheriff. The sheriff demanded from Noel possession of the sheep which the latter refused to give, claiming an agister's lien upon them. Thereupon the sheriff posted notices that he would sell the sheep on the twenty-second day of March, 1927. The plaintiff then, on March 21, brought this action against Cowan, the sheriff, in his official capacity and individually, and Della Noel Jones. After setting up the foregoing facts, with others, plaintiff alleged that the reasonable value of herding, pasturing and feeding the sheep and performing labor in caring for them, amounted to the sum of $1,586, in which amount he claimed an agister's lien. He *261 prayed for judgment for the amount claimed, that the same be declared a lien upon the sheep and that the lien be foreclosed; that he be awarded a reasonable attorney's fee, and the costs of the action. He prayed that the sheriff be orderd to show cause why he should not be permanently restrained from selling the sheep under the execution.
An order to show cause having been issued a hearing was had on March 25, 1927, at which both sides to the controversy produced evidence. As the result of the hearing the court issued an order restraining the defendants from selling the sheep pending the outcome and disposition of the action. Cowan, Black as sheriff and Black individually, have appealed from the order.
The contract whereby Noel, the plaintiff, received from Mrs.[1] Jones the sheep on shares amounted to a bailment. (Robinson v. Haas,
Wade on Attachment, section 325, says garnishment differs from attachment by seizure in two important particulars: (1) its validity does not depend upon the officer's taking possession; (2) it creates no specific lien upon the defendant's property in[2] favor of the plaintiff. Where property of the defendant is held by one whose possession the plaintiff has no right to disturb, garnishment is the only method by which it can be attached. "It has been said in a former section hereof that by garnishment no specific lien was obtained upon the property in the garnishee's possession. Yet it cannot be said that attachment by this method creates no lien for that would be equivalent to saying that it was no attachment. So far as it goes in this direction, the attachment is quite as effectual by this method as by seizure and actual custody. The difference lies in the fact that by seizure the lien attaches to the thing itself, so far as defendant's interest therein exists, while by garnishment only defendant's interest in the thing is affected so as to prevent its transfer." (Wade on Attachment, sec. 338.)
The plaintiff had the lawful possession of the sheep with which the sheriff could not interfere from the date of the attachment to September 1, 1926. The sheriff did not have the right to take manual custody of them when the attachment was levied but he did have the right to take such possession when they were no longer subject to the contract of bailment, of which fact he was notified by the plaintiff. Properly, upon receiving notification from the plaintiff, he should have taken them into his possession and have placed the plaintiff or someone *263 else in charge as keeper, first having obtained an order of court authorizing him to do so. But, as we have seen, he did not take any further affirmative action; the sheep remained in the possession of the plaintiff. Upon the situation presented, was the plaintiff entitled to what may be termed an agister's lien?
"A ranchman, farmer, agister * * * to whom any * * * sheep * *[3-5] * or other stock are entrusted and there is a contract, express or implied, for their keeping, feeding, herding, pasturing, or ranching, has a lien upon such stock for the amount due for keeping, feeding, herding, pasturing or ranching the same and is authorized to retain possession thereof until the sum due is paid." (Sec. 8383, Rev. Codes 1921.)
In Love v. Hecer,
The sheriff, armed with a writ of attachment, is charged with the duty of taking into his possession property which is subject to manual custody under the writ. If he does so and employs a keeper without an order of court he is personally liable for the keeper's compensation. (Daly v. Kelley,
A sheriff is not entitled to be paid for his trouble and expense in taking and keeping property under attachment or execution or other process, until the allowance for the same is fixed by the court. (Shumway v. Leakey,
As the sheriff in the instant case had not the authority to appoint a keeper, and could not make the expense of keeping the animals a charge against them, he was without authority to enter into a contract with plaintiff which would support the latter's claim to an agister's lien. It seems to be conceded by counsel for defendants that plaintiff may look to Cowan and the sheriff for his compensation.
We do not intend to leave the inference that the result would be different had the plaintiff been appointed a keeper pursuant to a court order.
As plaintiff has no recourse against the attached property, it follows that the court erred in granting the restraining order, which must be reversed, and it is so ordered.
Reversed.
ASSOCIATE JUSTICES MYERS, STARK, MATTHEWS and GALEN concur. *266