27 Mont. 154 | Mont. | 1902
delivered tbe opinion of tbe court.
Tbis is an appeal from an order denying defendants’ motion for a new trial. Tbe appeal from tbe judgment was dismissed heretofore.
An attachment having been issued out of tbe court of one P. H. Burns, a justice of tbe peace for Silver Bow county, tbe justice appointed one Rodgers as a special officer to serve tbe summons and tbe writ of attachment in tbe suit of tbe Beaver-head Meat Company, a corporation, plaintiff, against Cora E. Ramsey, defendant. Said Rogers, as such special officer, levied upon tbe personal property belonging to tbe defendant, Ramsey, being tbe furnishings and supplies of a certain Elwood cafe and lodging bouse conducted by her. It appears that said officer entered tbe premises referred to, closed tbe doors, and remained in possession of tbe personal property and tbe premises from the 31st day of July up to and including tbe 5th day of August, 1897; be having appointed two custodians, S. O. McCall and George H. Chapman, to remain in tbe possession of tbe property and premises during tbe said period of time. On tbe 5th day of August, 1897, tbe officer released tbe said personal property, and left tbe premises, having discovered that all of tbe personalty bad been bona fide mortgaged to another party. Tbe plaintiff sued tbe justice, tbe special officer, and tbe sureties of the justice for damages alleged to have resulted from tbe destruc
The alleged insufficiency of the evidence cannot be inquired into, for the reason that there is not anything in the record to show that all the evidence adduced at the trial is before us. Such of the evidence as is in the record may be considered with exceptions saved thereto, and in connection with the instructions complained of, but for no other purpose.
It is not necessary to discuss the- specification relating to the ruling of the court upon the objection to the question propounded to the plaintiff as to the amount of damages, for the reason that, if the case be tried again, probably the obscurity and involved character of the question will not appear again.
The appellants specify as erroneous a number of instructions which were given. Instruction No. 3, complained of, tells the jury, pointedly, that an officer with a writ of attachment has not any right or authority to take and hold possession of any building in which the personal property to be seized is, and that he and his bondsmen are liable in damages “if he takes possession of such room or premises.” This is error. An officer has the right to enter a business place against the will of the occupant, permission having been asked and refused, and to seize the property therein belonging to the occupant and subject to levy. It is impossible to- make such levy in many cases, as where a whole stock of goods is seized, without taking possession of the place where.the goods are. The officer must not linger longer than reasonably necessary to- carefully pack up and prepare the goods for removal (Waples, Attachm. Sec. 298) ; to do this packing may take an hour or it may require a week. The instruction is not cured of its vice by another part thereof which says that, if the juiy believe from the evidence that defendant Rodgers took possession of the building, or any part thereof, and held the same for storage of the property, they then should find for the plaintiff, etc. The officer has a right to enter and
So far as instruction No. 4 is criticised, it does not appear to bave been prejudicial to tbe appellants. Tbe question raised, in connection with this instruction, as to responsibility of tbe appellants, or any of tbem, for acts of tbe custodians, will be discussed infra. Tbe instruction is not a model, but we refrain from discussing points not raised.
Instruction No. 5, given and complained of, is not discussed in tbe brief, and we do' not pass upon it.
Instruction No. 16 is as follows: “You are further instructed that if you find that tbe plaintiff sustained any’damages in this action, and that the defendants are liable therefor, she would not be limited to tbe damages which she sustained for tbe time that tbe business was actually closed, but is entitled to a verdict for all damages by reason of tbe unlawful act of tbe defendant, which arose from tbe acts complained of.” Appellants complain of this instruction, saying that it was given upon an erroneous idea “that tbe plaintiff was entitled to simply abandon her business — not endeavor to continue it after tbe attachment was released, or to endeavor to settle tbe attachment suit; and that all damages following as tbe result, incidental or otherwise, of tbe closing of tbe business, should be allowed to tbe plaintiff.” We think that a jury might easily be led into error by this instruction. We do not find any other instruction which, in connection with this one, states tbe law. It is not safe to say to a jury that an injured party is entitled to “all damages” which arise from unlawful acts, leaving each juror to determine what are damages, and in bis discretion to award “all damages,” whether they be remote or proximate, fanciful or reasonable, as
The appellants, in two prayers for instructions, Nos. 1 and 2, asked the court to instruct as follows: “(1) You are further instructed that the defendant Alexander Rodgers cannot be held liable for any independent wrongful acts, if any such there were, of S. O. McCall or George H. Chapman, not authorized by said Rodgers, or within the scope of the authority conferred upon them in their capacity of custodians of the property of said Cora E. Ramsey. (2) Yóu are instructed that the writ of attachment issued by Justice Burns in the case of the Beaverhead Meat Company against Cora El. Ramsey was directed only against the property of Cora'El Ramlsey, and if you should find that, in the service of such process-, Alexander Rodgers or any person under his authority committed any wrongful acts against the person of said Cora E-. Ramsey not authorized or sanctioned by the said Justice Burns, or within the scope of the authority conferred upon him by such justice, then such justice and his official bondsmen are not liable for such acts.” The responsibility of a constable, sheriff, or justice of the peace who- appoints a special constable, for the acts of the deputy, or of the special constable, is, we think, well stated in Dysart v. Lurty, 3 Okl. 601, 41 Pac. 724. The court in this case said: “The general rule seems to be that if the deputy is acting under a writ or process, and, while attempting to execute the process, he exceeds his authority and commits a wrong, or fails to perform the duty imposed upon him, his principal and the principal’s sureties will be liable for any damages arising from such acts or omissions, or, if he is acting without process and under the orders or instructions or with the assent of his superior, then the principal and sureties are liable. On the other hand, if the deputy assumes to act without process, or without the knowledge or assent of his principal, and performs unauthorized acts, or commits a wrong, whether negligently, wantonly, or maliciously, he will be liable for a personal trespass, but his principal and the bondsmen of the principal are not liable.” (9 Am. & Eng. Enc. Law, 2d Edition (note), 392; State v. Moore, 19 Mo.
The refused instruction No. 3, possibly, technically states the law as we have outlined it above, but is not expressed in such language as to be understood by jurors, who would .probably misunderstand what the words “official duties” and “independent wrongs” mean, and the court did not err in refusing to give the same. It required more than mere verbal change to make it clearly state the law.
The appellants properly, we think, complain of the refusal of the court to give the following instruction, numbered 4: “In
Instruction No. 5 (refused) was asked for by appellants. As it states some propositions, which are not the law, which we have already commented upon, and which even are complained of by appellants as having been given in the charge to> the jury, to the prejudice of appellants, at request of respondent, we see no reason why the appellants assign as error the refusal of the court to give it.
The fact that the goods seized belonged to the debtor, and that not she, but the mortgagee only, might complain of their seizure under an attachment admitted to have been valid, is not mentioned or suggested by appellants.
Because of the errors referred to, the order of the district court overruling the defendants’ motion for a new trial is reversed.
Reversed and remanded.