40 Neb. 420 | Neb. | 1894
The petition alleged that the defendant M. W. Crabtree, on November 8, 1887, was duly elected to the office of constable in and for Norfolk precinct, Madison county, Nebraska; that in due time he qualified as such officer, the sureties on his official bond being his co-defendants; that
“ 6. Said constable neglected and refused to execute said process, although there was then in his county property belonging to said J. D. Hoover on which he might have levied sufficient to make said amounts, but the defendant M. W. Crabtree, on the 12th day of June, 1889, returned said writ without executing the same, and the said J. D. Hoover has not now, nor has had since the return of said writ, property upon which a writ of execution could levy, and said defendant M. W. Crabtree did not therein faithfully perform the duties of his said office of constable as required by law, but has wholly failed to perform the same, whereby the plaintiff has lost his said debt, to his damage in the said sum of $87.07, with interest thereon from the 26th day of November, 1888, at the rate of ten per cent per annum.”
Judgment was prayed for the amount last named. That portion of the answer not above referred to wa3 in the following language:
“ 2. The defendant, for further answer to said petition, avers that upon the delivery of the execution mentioned in count 5 of said petition to the said M. W. Crabtree, constable, he went to Battle Creek, the place of residence
“3. Defendants deny that by reason of the failure to-deliver the execution as set forth in said petition that plaintiffs have lost their demand against the said J. D. Hoover, and aver that on the 7th day of December, 1888, said execution defendant J. D. Hoover filed with the said George N. Beels, justice of the peace, a bond in manner and form as provided by law to stay execution upon said judgment with sureties approved by the said justice, and said bond is sufficient to secure the payment of said dewwid.”
“Battle Creek, Neb., 12-11-88.
“ To Wigton & Whitham and M. W. Crabtree: Please take notice, that I, J. D. Hoover, defendant in the case of Steele & Walker v. J. I). Hoover, do intend to apply to the district court for an injunction restraining the enforcement of the execution in favor of said Steele & Walker and against the undersigned now in the hands of said M. W. Crabtree for execution, and issued from the court of George N. Beels, justice of the peace in and for Madison county, Nebraska. Said application will be made before his honor Judge Duncan on the 15th day of December, A. D. 1888. J. D. Hoover.”
There was a reply in denial of the averments of the answer. The issues were tried to the court, without a jury, and judgment rendered in favor of the defendants. The trial of the case began with the following admission:
“Mr. Hays: The defendants admit that, if present, J. D. Hoover, W. E. Hoover, and Simon Montgomery would testify that at the time the execution was given to the defendant Crabtree, and until and including the 12th of December, 1888, J. D. Hoover liad property not exempt from execution in the county of Madison sufficient to satisfy the execution held by the defendant Crabtree and being the same mentioned in this case; and the defendants further admit, and the defendant Crabtree further admits, that the judgment of Steele & Walker v. J. D. Hoover still remains unpaid. The defendants further admit that at the time of the return of said execution, and at the time of the commencement of this action, and thenceforth to the present time, said J. D. Hoover has had no property upon which this execution could be levied to make the judgment mentioned in the pleadings.”
The defendant Crabtree testified that the reason he did
On behalf of plaintiff, George L. Whitham testified as follows: “On the day that Mr. Crabtree received the execution, or on the day on which it was to be levied, he
It is without question that there was, as alleged, the recovery of the judgment; the issue of an execution thereon to Crabtree as constable; the existence of a stock of goods of the execution defendant, subject to and within the power of said constable to make a levy thereon for the satisfaction of the execution with the collection of which he was charged. It is equally without question that afterwards, and before the return of the execution, the stock of goods was placed beyond reach, and that Hoover never since has owned sufficient property from which the judgment in favor of plaintiff could be satisfied. Every element essential to the liability of the defendants is thus established, and it remains but to consider whether the failure to make the levy has been sufficiently excused by the defendants. As applied to the facts of this ease, the law admits of but little question.
In the case of Dunlap v. Berry, 4 Scam. [Ill.], 331, we find the following language: “ The first instruction is in the following words: ‘If the jury believe that the said Elder had property in the county of Morgan sufficient to pay the execution, or part thereof, against him, and that
In People v. Palmer, 46 Ill., 403, is the following language : “The judgment against Crawley was obtained in a foreign county, and could only be made a lien by the levy of the execution which issued upon it, and filing, by the sheriff, a certificate of such levy in the recorder’s office of the county where the land was situated. (Ch. 57, R. S., 305, sec. 25.) By omitting to make this levy and making and filing the certificate thereof, the plaintiff in the execution lost his lien on the land. The excuse for this neglect by the sheriff is that the plaintiff in the execution had not furnished any funds to pay the fees for filing and recording the certificate of levy. This excuse is wholly insufficient to relieve the sheriff from his responsibility in failing to levy and making and presenting his certificate thereof to the clerk to be filed. It was his duty to make a levy on the land and present the certificate, to be filed of record with the clerk of the circuit court, and if the clerk failed to record it by reason that his fees were not paid, the sheriff had discharged his duty by presenting the certificate for record. The sheriff should have levied on the land at all hazards and have made a certificate thereof, which if, on being presented to the clerk, he refused to record, the sheriff would be exonerated.”
In Elmore v. Hill, 51 Wis., on pages 366 et seq., occurs the following language: “ The rule of diligence required of an officer in making a levy of an' execution placed in
In the petition it was alleged that the execution was issued on December 10. In the answer it was averred that constable Crabtree, upon the delivery of the execution to him, went to Battle Creek for the purpose of levying it. There is no evidence as to the particular date on which Crabtree made this trip. The notice served on him by Hoover bears date the 11th, so that it may fairly be assumed that he went to Battle Creek the day after the execution was issued, possibly on the day he actually received it. The party from whom he was required to collect his execution informed him that he had filed a stay bond. This the constable had no right to believe, for section 1052 of the Code of Civil Procedure requires that the justice of the peace who issues an execution, in case of a stay, shall recall
Reversed.