71 P. 477 | Idaho | 1902
Lead Opinion
— This action was commenced on the 13th of February, 1891, against P. H. Kinney, sheriff of Alturas county, and fourteen sureties on an official bond given by him as such sheriff on the sixteenth day of January, 1899. A number of the sureties died during the pendency of the action, and for this reason, and other causes, the action was dismissed as to all of such sureties except the respondents S. J. Friedman, Charles Knaupp, John Murphy, C. J. Johnson, Charles J. Sherry, and Frank C. Coolidge. The plaintiffs, who are partners and merchants, had, prior to February 9, 1888, sold merchandise to one Warren P. Callaghan. The latter being indebted to them, they commenced an action in the district court, Alturas county, on the ninth day of February, 1888, to recover the sum of $1,685, with interest thereon, from said Callaghan, and in said action sued out and obtained a writ of attachment to secure said amount, and placed said attachment in the hands of the respondent Kinney, as such sheriff. Acting under said attachment, said Kinney, as such sheriff, seized and levied upon a stock of merchandise of the value of over $4,000, and afterward, without execution or due authority, sold said mer
It will thus be seen that the defense is that the conversion complained of in this action, the wrong and the tort, was committed in 1888, during a former term of the said sheriff, and that the appellants had alleged said facts in a suit against said sheriff and his sureties on his former bond, and that the appellants had obtained an adjudication of such facts, and should
A careful scrutiny of the evidence convinces us that the sheriff did unquestionably convert the attached goods and proceeds thereof to his own use prior to the execution of the bond sued on in this action. It is true that under the law it was the duty of the sheriff to continue to hold such proceeds subject to the orders of the court, and the same should have been in his hands at the end of the first term and at the time of the execution of the bond sued on in this action; and, if this condition had existed, and the appellants had not estopped themselves, by Teason of their allegations and proofs, and the adjudication brought about by them in said other action, the sureties here would undoubtedly be liable to the appellants in this action.
Appellants have assigned, in their brief and bill of exceptions, a great many errors, fifty in number, occurring during the trial of the cause in the district court. In our. opinion, it would consume too much time and space to consider these assignments of error seriatim, and we think it unnecessary so to do. Many of the assignments of error relate to the introduction of evidence. A few general observations will suffice. Appellants objected at the trial to the introduction of the record in the former case. The acts and declarations of parties against their own interests, whether made in court or not, are admissible against them. Those which are self-serving or in the interest of the parties making them, are not admissible. The respondents introduced at the trial and were permitted to read a portion of the opinion of this court upon appeal in said former action. This was error. But we do not think that this error brought about the verdict complained of, and a careful study of the iecord convinces us that the verdict would not have been differ
For the foregoing reasons, the judgment is affirmed. Costs awarded to respondents.
Rehearing
ON PETITION POR REHEARING.
— This is- an application for a rehearing based on a printed petition containing one hundred and three pages. In the opinion, the main points involved in this controversy are stated, and it is not necessary to repeat them here, In the -petition for a rehearing counsel first discuss writs of. error at common law, appeals in suits of equity, and the nature of this appeal, and contend that this is an action at law, and presented on a bill of exceptions, and for that reason only errors of law can be considered on this appeal; that the only question presented for determination is, “Has any prejudicial error been committed, which was excepted to, and preserved by the record ?” that this is not an appeal from an order refusing a new trial, and based upon a statement of the case, but is in the nature of a hearing on writ of error to the district court. The petition contains a very learned discussion of the questions above
There was error in the admission of some testimony, and some in the rejection of testimony, but we do not think it was such error as to prejudice the substantial rights of the parties. That being true, under the provisions of section 4231 of the Revised Statutes, courts' are admonished to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties, and not to reverse any judgment because of such error or defect. The fifty errors specified may be classified as follows: One, that the court erred in permitting Mr. Price to act as attorney for the respondents; twenty-nine in regard to the admission and rejection of testimony; nineteen in regard to the modification, giving, and refusing to give certain instructions; and one as to the verdict not being supported by the evidence. The court examined each of said specifications, and while in several of them, we found error, we did not consider the errors sufficient to warrant a reversal of the judgment.. The court concluded that the substantial rights of appellants had not been prejudiced by the errors committed. The court concluded that the verdict of the jury, had it been for the appellants, would not have been supported by the evidence if all of the evidence offered by them or in their behalf had been admitted, and that a verdict in favor of appellants should have been set aside, upon proper application. In that case it was not necessary to pass upon each and every of the specifications of
After a most careful examination of the entire record before us, we are fully convinced that the dereliction of duty or misfeasance in office — the conversion of the goods or their proceeds —occurred prior to the time that these surety defendants and respondents became liable on the undertaking sued on, and that upon all of the testimony, both received and offered and rejected, and the law applicable to it and to the issues made by the pleadings, a judgment in favor of appellants should, on proper application, have been set aside, and not permitted to stand. Counsel for petitioners (appellants) admit that it is immaterial in this action how the sheriff got' the money out of or for the Callaghan goods, or a part of them, but that, if he had it in his hands after these respondents became sureties for his official 'actions, they were liable. We concede that the main issue in this action is as to whether the sheriff had the money in his hands after these respondents became his sureties, and, as we conclude from the whole record that the verdict of the jury is supported by all of the evidence offered and received, including that offered by appellants and rejected by the court, and that a verdict in favor of appellants, based thereon, would not have been supported by such evidence, therefore no prejudicial error was committed; for, if the appellants would not have been entitled to a judgment upon any theory of the case, as presented by the record, they are not entitled to a reversal of the judgment.
Considerable criticism is made by learned counsel because of the use of the word “estoppel” in the original opinion; and we may concede that it might have been more correct to have used
The petition for a rehearing is denied.