Tieman v. Haw

49 Iowa 312 | Iowa | 1878

Rothrock Ch. J.

I. The evidence tended to show that the defendant Haw, in arresting the parties upon said boat, towed the boat to the levee at Burlington, and that at the time of the arrest he held no-process nor warrant against the boat, and that after the arrest of the parties, and pending their preliraary examination, a proceeding was instituted against the boat as a nuisance, and a warrant was issued by a justice of the peace, and delivered to the defendant Haw, ordering him to attach and levy on the boat, and hold it “subject to the decision of the District Court of Des Moines county. ” The defendant made return to this writ that he had attached and levied on the boat, and had it moored on the levee at Burlington.

It was further shown that Corville, the owner and occupant of the boat, turned the same over to plaintiff to indemnify him for becoming surety on a bond for five hundred dollars, and that said bond was forfeited, and the amount paid by plaintiff. It further appears that plaintiff held a chattel mortgage upon the boat, upon which about one hundred and forty dollars was unpaid. The evidence further shows, without conflict, that plaintiff demanded possession of the boat of Haw, which was refused.

Haw removed the personal property from the boat. In a short time the boat was sunk, after which the evidence tends to show no guard or watch was kept over it by Haw. It was afterward raised and taken away by some unknown persons, and was subsequently sunk and destroyed.

1. coboneb : acting sheriff: sureties. The defendants requested the court to instruct the jury as follows: “The sureties on the bond of said Haw, as coroner, are not, as a matter of law, legally liable, or to be held accountable for Ins acts while acting ex officio as sheriff, and as to these defendants your verdict should be in their favor. ”

This instruction was refused, and we think the ruling was correct.

The Code, § 319, provides that “it is the duty of the coroner to perform all the duties of the sheriff when there is no sheriff, and in cases where exception is taken to the sheriff, as provided in the next section. ”

The defendant Haw, by virtue of his office of coroner, was performing the duties of sheriff, because there was no sheriff. His sureties were bound for the faithful performance of all the duties required of him by law. One of these duties, expressly enjoined upon him by law, was that he should act as sheriff when there was no sheriff.

2 _._. • II. It is next urged that the sureties are not liable because they can only be held for acts done by authority of legal process, or by direction or' authority of law, and that there was no legal authority to issue an order or warrant for the seizure of the boat.

If all the acts of an officer are legal, and not contrary to law, neither the officer nor his sureties would be liable in damages; but in this case the defendant Haw did have a warrant or order from a justice of the peace, ordering him to seize the boat. He acted upon the warrant, and did seize and hold it, and while in his custody it was sunk and raised, taken away and destroyed.

He assumed to act under a warrant or order, and because it was unauthorized, and his act was illegal, he and his sureties are liable if the property was lost by his negligence.

The sureties of a sheriff are liable for a trespass committed by their principal in attempting to discharge his duty as an officer. Strunk v. Ocheltree, 11 Iowa, 158; Charles v. Haskins et al., Id., 329.

In this case the sheriff, in seizing and holding the boat, and refusing to deliver it up, was not acting in liis private and individual capacity; lie w7as attempting to discharge his duty as an officer, under a wait or order, and he and his sureties are liable for any negligence by reason of which the property was lost or destroyed.

3_'._. ■ III. The plaintiff was once the owner of the boat, and the chattel mortgage was taken as a lien for purchase money. At the time, he sold the boat it was an ordinary wood boat, without any cabin. Afterward the purchasers built a cabin upon it, and used it as a house of ill-fame.

During the trial the defendants offered to prove that plaintiff knew for what purpose the boat was used at the time of its seizure, and for what purpose it was to be used at the time of its sale. This testimony was objected to- and the objection sustained. Defendants complain of this ruling of the court upon the ground that, as the plaintiff had permitted the property to be put to an illegal and immoral use, he could make no claim against the officer for seizing it.

There is no doubt that when the owner of a building knowingly leases it for the purposes of prostitution he cannot recover rent upon such a lease, but we are aware of no case, and counsel have cited us to none, wdiere the property thus leased becomes liable to confiscation. At least,wdiere the property was seized without authority of law7, as it confessedly w7as in this case, wre think the defendant Haw7 was not in a position, by a refusal to deliver it to the mortgagee, and the person to whom the owner surrendered it as security, to convert it to his own use.

IY. It is urged that plaintiff had no right to the possession because the mortgage u7as upon the flatboat, which was afterward altered and changed both in use and appearance, and that a simplé demand of the boat was not sufficient, but that plaintiff should have proceeded by an action of replevin.

In answer to this it is sufficient to say that it was for the jury to determine the identity of the mortgaged property, and we think the description was sufficiently specific; and if the plaintiff had the right to the possession he was not bound to proceed by replevin, but might bring his action for damages.

Y. Lastly it is urged that the verdict against the sureties is unwarranted, because there was no evidence of negligence on the part of the defendant Haw.

The question of negligence was for the jury to determine, and we think, in view of the facts that the boat was sunk, and raised and taken away while it was in the custody of Haw, the verdict upon the question of negligence is sustained by the evidence.

Affirmed.