99 P. 674 | Utah | 1909
This action was brought against C. Frank Emery, sheriff of Salt Lake county, Joseph C. Sharp, deputy sheriff, and E. M. West, appellant herein, to recover damages which plaintiff claims he has sustained by reason of an alleged wrongful seizure and sale of certain personal property belonging to respondent (plaintiff), and claimed by him as exempt from execution. The said seizure, levy, and sale were made under and by virtue of the executions issued out of the city court of Salt Lake City upon two judgments in favor of West, appellant, and against Snow, respondent herein. It is alleged in the complaint that the property levied upon and sold consisted of certain chairs and tables of the value of $100, the private library of the plaintiff of the value of $2,000, necessary household, table, and kitchen furniture, carpets, bed and bedding in actual use by the plaintiff of the value of $325. It is also alleged in the complaint that said levy and sale were made by said Emery and Sharp at the express request of defendant West, and that plaintiff, at the time the levy was made, and also at the time of the sale, claimed said property as exempt
Appellant contends that the cause of action is barred under section 28.78, Comp. Laws 1907. This section, so far as material here, provides that “an action against a marshal, sheriff, constable, or other officer, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office,” can only be commenced within two years from the time of the accrual of such action. Section 2877, Comp. Laws 1907, provides, among other things, that “an action for taking, detaining, or injuring personal property” must be commenced within three years. The trial court, in effect, held that the action as to Emery and Sharp was barred under sec. tion 2878, but held that the action as to West, appellant would not be barred until three years from the
The court instructed the jury, in part, as follows: That, under the “law of the state of Utah in force at the time of the ■alleged seizures and sales complaiued of, ... . all persons in the state, except' nonresidents or persons about to depart from the state with intention of removing their effects therefrom,” were entitled to hold exempt from execution personal property as follows (quoting from section 3245, Comp. Laws 1907) : “(1) Chairs, tables and dishes to the value of two hundred dollars, and the library belonging to the judgment debtor to the value of three hundred dollars, ... all carpets in use, also all beds and bedding of every person or family.” Appellant duly, excepted to the giving of the foregoing instruction, and also to the refusal of the court to instruct the jury that respondent had no right to claim his library and household furniture as exempt property, and that they should disallow any claim made by him by reason of the seizure and sale of said property. The record shows: That, at the time of the seizure and sale of the property mentioned, respondent was a single man; that there was no one dependent upon him for support; that he lived alone in two rooms, which he rented; that he used one of the rooms as a bedroom and the other as a library and sitting room. Appellant insists that the articles enumerated in the foregoing instruction are not exempt to any one who is not the head of a family, and., as respondent was not the head of a family at the time of the seizure and sale of the property in question, he was not entitled to the benefit of the exemption provided for in section 3245, Comp. Laws 1907.
This section, so far as material here, .provides that: “The following property is exempt from execution except as herein otherwise specially provided: (1) Chairs, tables and desks to the value of $200, and the library belonging to the judgment debtor; also musical instruments in actual use in the family; (2) necessary household, table, and kitchen furniture belong
Tbe record shows tbat, after the judgment and costs were paid in full, tbe officer, defendant Sharp, who levied upon tbe property and conducted tbe sale thereof, bad a surplus of four cents from tbe proceeds of tbe sale, and tbat this amount was paid to one J. M. Bowman as tbe attorney and representative of tbe respondent. Appellant in bis answer pleaded tbe payment to and acceptance by Bowman as tbe attorney for respondent as a waiver by him of any and all damages, if any, sustained by him, and tbat be was thereby estopped “from maintaining or recovering upon . . . tbe alleged cause of action therein set forth.” Tbe court withdrew this issue from tbe jury on tbe ground that tbe evidence was not sufficient to support a finding by tbe jury tbat Bowman was respondent’s attorney. Appellant contends tbat this was error; bis contention being that there was sufficient evidence in bis favor on this point to entitle him'to have tbe
“The officer must execute the writ against the property of the judgment debtor by levying on a sufficient amount of the property, if there be sufficient; collecting or selling the -things in action, and selling the other property, and paying the plaintiff, or his attorney, so much of the proceeds as will satisfy the judgment; any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debtor, unless otherwise directed by the judgment or order of the court.”
There are several other errors assigned, but they do not contain sufficient merit to warrant a discussion of the points involved.
We find no reversible error in the record.
The judgment of the lower court is therefore affirmed, with costs to respondent.