85 P. 724 | Ariz. | 1906
This action was brought by George Y. Owesney, as the assignee of Thomas J. Turner, to recover the amount claimed to have been expended by Turner, as sheriff, in keeping certain property under attachment in an action wherein the Southwestern Commercial Company was plaintiff and William Reid and John Baker were defendants. The cause was tried to a jury and resulted in a verdict for plaintiff. From the judgment entered thereon, and an order denying a motion for a new trial, the defendant appeals.
The first assignment of error challenges the sufficiency of the complaint as against a general demurrer. The complaint alleges that the defendant instituted suit against Reid and Baker and caused their goods and chattels to be attached; that, at the instance and request of the attaching plaintiff, defendant herein, the sheriff placed a watchman in charge of the goods so attached, who performed services for a specified period. It is not alleged that the court or judge made any order for the preservation of the property, nor is it
Appellants urge that the complaint is defective in other respects. While it is not, perhaps, as definite in its allegations-as good pleading would require, we think that the facts that
The second assignment of error is the refusal of the court to direct a verdict for the defendant at the close of plaintiff’s evidence, on the ground that there was no evidence upon which the jury could legally return a verdict. It is claimed by the appellant that there is no evidence that the sheriff had paid the watchman for his services, or that the sheriff’s claim had been assigned to plaintiff. Conceding that it was material that the sheriff must have paid the watchman before a right of action accrued to him against the defendant, we find testimony from both the sheriff and the watchman that the sheriff had given his promissory note to the watchman in payment, and the note is in evidence. It is true that in response to questions asked upon cross-examination, the watchman testified that neither the commercial company nor the sheriff had paid him anything. By this he evidently meant that he had received no money for his services, as he had just testified that he had received the sheriff’s note, which had been put in evidence. There is a written assignment of the sheriff’s claim to the plaintiff in this action in evidence, and the sheriff also testified that he had assigned the claim to the plaintiff.
Appellant complains of the action of the trial court in refusing to give certain instructions asked for by it, but reading all. of the instructions given together we fail to perceive that appellant has any ground for complaint. Complaint is also made of the action of the court in permitting witness S. F. Noon to express an opinion as to the value of the services of a watchman in the locality in which the services in this case-were rendered. The objection made was, that opinion evidence is not admissible to prove the value of services. But it is urged here that the witness was not qualified to give such testimony, he not having lived in the vicinity at any time during
No error being apparent, the judgment is affirmed.