State v. Dalton

Decision Date25 January 1892
Citation10 So. 578,69 Miss. 611
CourtMississippi Supreme Court
PartiesSTATE, USE J. T. BARNETT, v. A. J. DALTON ET AL

FROM the circuit court of Prentiss county, HON. LOCK E. HOUSTON Judge.

Action by J. T. Barnett against appellees, A. J. Dalton and the sureties on his bond as sheriff of Prentiss county. The declaration alleges, as a breach of the bond, that the sheriff had levied an attachment in favor of Barnett against one Maxwell on a certain stock of goods, and that the same was destroyed by fire through the negligence of the defendant, Dalton, whereby plaintiff lost his debt. There was a plea of general issue and notice of special matter in defense.

Briefly stated, the material facts, as shown on the trial, were as follows: On November 9, 1889, appellant, Barnett, sued out an attachment against Maxwell. The writ was delivered to the defendant, A. J. Dalton, sheriff of Prentiss county, who, on November 10, levied the same on a stock of goods of the defendant, W. C. Maxwell, in his store-house in the country about seventeen miles from Booneville, the county site. S. M Barnett, agent of the plaintiff, was with him at the time of the levy, and there were certain negotiations between him Barnett, and Maxwell, looking to a compromise and settlement of the suit. Looking to this, by direction of Barnett, the sheriff delivered Maxwell the books of account which had been levied upon, and locked up the store containing the goods and thereupon he (Dalton) and Barnett left for Booneville, intending to return on the following Tuesday or Wednesday, and inventory the goods if the compromise was not effected. This was Sunday. On arriving at Boonville they had a conference with. Mr. Selman, plaintiff's attorney, who informed them that the levy made on certain cotton was defective. Thereupon, it was agreed that another levy should be made. On account of his duties as tax-collector, the sheriff stated that he could not return, and it was suggested that a deputy could be sent out the next day to make the levy on the cotton and to inventory the goods in the store; and one Kimball, who had been acting as deputy sheriff, and who had experience, was finally agreed on and sent, plaintiff's agent furnishing him a horse for that purpose. On the part of the defendant, there was evidence tending to show that he desired to send another deputy, but that the attorney for plaintiff objected to this, and insisted that Kimball should be sent. There was some conflict in the evidence on the point, but, in view of the opinion of the court, it is not deemed necessary to make any further statement of the facts in regard to this.

On the next day Kimball was deputized to further execute the process, and to take charge of and inventory the stock of goods, and he, with S. M. Barnett, the agent of plaintiff, went to the store. After some consultation between Barnett and Maxwell, the former told Kimball that the compromise had not been effected, and to proceed with the inventory. This was done, and, after the inventory was finished, it was suggested that the goods should be boxed up and removed to the store-house of one Millican, distant from the store about one-half mile. The store in which the goods were situated was about two hundred and fifty yards from the residence of the defendant, Maxwell, and the other store-house was within about eighty yards of Millican's residence.

The deputy, Kimball, testified that he did not have a sufficient number of boxes to pack the goods in order to remove them, and, further, that while Millican said that the goods might be put in his store, he stated that he would not be responsible for them. Kimball further testified that his main reason for not removing the goods was that he was afraid of the breakage of the glassware, a considerable portion of the stock Consisting of glassware and drugs. There was evidence tending to show that Maxwell's store-house had been broken into some time before that, and S. M. Barnett, plaintiff's agent, testified that he informed Kimball that he had heard, through a reliable source, that if the goods were left in Maxwell's store they would be burned. Kimball denied this, and testified that, after conferring with Millican, he concluded not to remove the goods, but to leave them in the store until a future day. He did so, and returned to Booneville. This was on Tuesday, and the store was burned on Thursday night. Kimball further testified that he left the goods in charge of no one, but that they were locked up in the store, which he considered a little safer than Millican's store, as it was nearer a residence.

The court instructed the jury, in substance, that it was the duty of the sheriff to properly execute the process, and to take reasonable and proper care of the property levied upon, and that he and the sureties on his bond were liable for the failure to safely and securely keep the property, unless, by the act of plaintiff or his agent, he was relieved of this duty; also, "that the law fixing liability upon sheriffs is of a character so highly penal that very slight circumstances may relieve them." Among others, the court gave, at the instance of defendant, the following instruction:

"The court charges the jury that the issue in this case is not as to whether the goods were burned, but as to whether the burning was the result of the negligence of the defendant, Dalton, and, unless the jury should believe that the loss was the result of carelessness or mismanagement of the defendant, they will find for defendants."

The plaintiff asked instructions seeking to enforce a more strict rule of liability against the sheriff, but these instructions were modified, and the rule of liability, as above indicated, was laid down for the guidance of the jury.

The opinion contains a further statement of the facts necessary to an understanding of the points decided.

Affirmed.

B. A. P. Selman and J. M. Boone, for appellant.

1. Defendants were only entitled to four peremptory challenges. Code 1880, § 1708. It is immaterial that there were several defendants. Even in criminal cases, where defendants are jointly tried, they are only entitled to the number of challenges allowed one defendant. Code 1880, § 3070.

2. This is an action upon the sheriff's bond, and not a motion against the officer, in which the strict rule of liability referred to in Simms v. Quinn, 58 Miss. 221, and Skinner v. Wilson, 61 Ib., 90, is applicable.

Plaintiff does not seek to enforce a penalty, but to recover the actual damages sustained by reason of the sheriff's negligence.

The court erred in modifying plaintiff's charges, and particularly in telling the jury, by the third instruction "that the law fixing liability upon sheriffs is of a character so highly penal...

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14 cases
  • Lipscomb v. State
    • United States
    • Mississippi Supreme Court
    • February 19, 1898
    ... ... Witkowski v. Maxwell , 69 Miss ... 56, 10 So. 453 the court saying: "We cannot say that the ... verdict of the jury, by which it is settled this was done, is ... not supported by competent evidence from which this inference ... follows; "and in Barnett v ... Dalton , 69 Miss. 611, 10 So. 578, the court saying: ... "We decline, moreover, to reverse, because another ... trial, properly conducted, could only result in a judgment ... for the appellees on the evidence before us." Here are ... three cases holding that where the verdict of the jury is ... ...
  • City of Jackson v. Mcfadden
    • United States
    • Mississippi Supreme Court
    • December 13, 1937
    ... ... is, and it will not adopt such parts of the common law of ... England as are contrary to conditions within the state ... 2 ... The ... mere fact that prospective juror from city is taxpayer with ... no interest different from other taxpayers ... There ... is no vested right in any particular juror, only a right to ... an impartial jury ... Barnett ... v. Dalton, 69 Miss. 611; Head v. State, 44 Miss ... 731; Gillam v. Brown, 43 Miss. 641; McGuire v ... State, 37 Miss. 369; Haney v. State, 129 ... ...
  • Mississippi Cent. R. Co. v. Aultman
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...their challenges and therefore cannot complain. Hubbard v. Rutledge, 57 Miss. 7; Ins. Co. v. Hillmon, 47 L.Ed. 446; 4 C. J. 952; Barnett v. Dalton, 69 Miss. 611. There was no error in requiring one defendant to proceed before the others. 1 Thompson on Trials, sec. 421. There was no error in......
  • Whittington v. State
    • United States
    • Mississippi Supreme Court
    • June 8, 1931
    ... ... complained of, the judgment will be affirmed, though the ... ruling may have been erroneous when made ... Planters ... Lumber Company v. Sibley, 130 Miss. 26; Germania ... Fire. Insurance Company v. Francis, 52 Miss. 457; ... Goodbar v. Dunn, 61 Miss. 618; Barnett v ... Dalton, 69 Miss. 611; Advance Gin and Mill Company ... v. Thomas, 81 Miss. 486; Ferriday v. Selser, 4 ... H. 506; Wellborn v. Spears, 32 Miss. 138; Routh ... v. Agricultural Bank, 12 S. & M. 161; Nichols v ... Gulf & R. Company, 83 Miss. 126; McGolthlin v. Meaux, 38 ... Argued ... orally ... ...
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