Aker v. Coleman

• Decision Date: 23 March 1939
• Docket Number: 6642
• Citation: Aker v. Coleman, 60 Idaho 118, 88 P.2d 869 (Idaho 1939)
• Parties: LESLIE J. AKER, Appellant, v. EARL COLEMAN, Former Sheriff of Ada County, State of Idaho, as Principal, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Respondents
• Court: Idaho Supreme Court

88 P.2d 869

60 Idaho 118

LESLIE J. AKER, Appellant, v. EARL COLEMAN, FormerSheriff of Ada County, State of Idaho, as Principal, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, Respondents

No. 6642

Supreme Court of Idaho

March 23, 1939

EXECUTION-LIABILITY OF SHERIFF FOR PROPERTY IN CUSTODY-PLEADING-GENERAL DEMURRER SCOPE OF-JUDGES-AFFIDAVIT OF PREJUDICE-MOTION FOR CHANGE OF VENUE.

1.The contentions that the second and third causes of action stated in complaint were barred by statute of limitations were not required to be considered on appeal where they were not urged in lower court or in Supreme Court.

2.A demurrer on ground that complaint does not state facts sufficient to constitute a cause of action searches the complaint to determine whether allegations therein contained entitle plaintiff to any relief.

3.Where complaint is sufficient to constitute a cause of action and put defendants upon defense, it is not subject to general demurrer.

4.Though a complaint attempts to state several causes of action, if any one of the statements of causes of action is good, a general demurrer should be overruled even though joined with a cause that is demurrable.

5.In action for damages against former sheriff and surety on his bond, complaint alleging that sheriff levied on property under execution, that third party claims were filed, that sheriff instituted interpleader proceedings which were determined in favor of the execution plaintiff, and that a goodly portion of property had slipped from sheriff's control but not because he considered himself not further bound to keep property for failure of execution plaintiff to give an indemnity bond, was sufficient as against general demurrer.(I. C. A., sec. 8-202, as amended bySess. Laws 1935, chap. 70, sec. 5-321.)

6.Affidavit of prejudice and motion for change of venue was properly denied where it was directed against both judges of the district court, in violation of statute forbidding the disqualification of more than one judge, and affidavit was filed after ruling of court on demurrer to original complaint.(I. C. A., sec. 1-1801, as amended bySess. Laws 1933, chap. 218.)

7.A demurrer is an "answer" within meaning of statute empowering court to grant additional time to answer.(I. C A., sec. 5-609.)

8.Where within time allowed defendant to plead to amended complaint court granted additional time within which to plead, and within such time demurrers and motions to strike were filed, the plaintiffs were not entitled to default judgment, since a demurrer is an "answer" within statute empowering court to grant additional time to answer.(I. C. A., secs. 5-609,5-905.)

APPEAL from the District Court of the Third Judicial District, for Ada County.Hon. Charles F. Koelsch, Judge.

Action for damages.Demurrer to amended complaint sustained and action dismissed.Reversed and remanded with instructions to reinstate the case and overrule the general demurrer.

Reversed and remanded with instructions.Costs awarded to appellant.

Leslie J. Aker, in propria persona, and S.D. Fairchild, for Appellant.

Both the original and amended complaints stated good causes of action, and the general demurrers thereto should have been overruled.

The complaints substantially complied with the rules of pleading laid down in Roth v. Duvall,1 Idaho 149;Federal Reserve Bank v. Smith,42 Idaho 224, 244 P. 1102;Hill v. Joseph,58 Idaho 267, 72 P.2d 283, 284;Price v. Pace,50 Idaho 353, 359, 296 P. 189.

Moffatt, O'Leary & Skiles for Respondents.

When on execution, third party claims are filed against the executing officer, he need not proceed with the execution unless an indemnity bond is furnished upon demand, and no liability attaches for failure to proceed with the execution.(Sec. 8-202, I. C. A., as amended by chap. 70, 1935 Sess. Laws;Kellogg v. Hurr,126 Cal. 38, 58 P. 306;Duncan v. Superior Court, 104 Cal.App. 218, 285 P. 732.)

The granting of an extension of time to plead is in the discretion of the court, and should be granted to subserve and not defeat substantial justice.(Sec. 5-905, I. C. A.;Dellwo v. Petersen,34 Idaho 697, 203 P. 472.)

Not more than one judge can be disqualified by a party to a proceeding.(Sec. 1-1801, I. C. A., as amended by chap. 218, Sess. Laws 1933.)

BUDGE, J. Ailshie, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

BUDGE, J.

This action was instituted by appellant against respondents, Earl Coleman, former sheriff of Ada county, and his official bonding company, Hartford Accident and Indemnity Company, a corporation, for damages sustained because of the sheriff's action with reference to an execution.

The amended complaint, divided into five counts, after setting forth that Coleman was sheriff and had filed his official bond, with the Hartford Accident and Indemnity Company as surety, contained allegations to the effect that Carrie B. Aker instituted and appellant was joined in an action against Edson and Olive G. Williams, case No. 14736, and that the constable attached certain personal property of the Williams April 6, 1935; that the Akers recovered judgment for $ 421.53, with interest, on March 24, 1936, which was assigned to appellant; about April 8, 1936, execution issued upon this judgment and was placed in the hands of Coleman, requiring him to satisfy said judgment out of the personal property theretofore attached and make return within 30 days; that Coleman, about April 8, 1936, pretended to levy upon the personal property attached, but failed, neglected and refused to levy upon all theretofore attached and appraised and fixed a value upon that levied upon by him as equal to or in excess of the amount of the judgment; that Coleman prepared notice for sale on execution of part of the personal property but failed, neglected and refused to post notices of sale immediately or to sell five days after preparation of such notices as provided by section 8-302, I. C. A.; that Coleman posted notices of sale, first on April 17, 1936, second on April 30, 1936, but entirely refused and neglected to hold such sale on the dates mentioned or any other date, and failed, neglected and refused to proceed with said execution or sale or to make return within thirty days.It is alleged that Coleman, with the purpose of assistance to the Williams, and to harass, annoy and defraud the judgment creditor, wrongfully solicited, encouraged and aided the Williams, Ernest Hermo and Standard Furniture Company to make and file false and unfounded claims to the personal property pretended to be held under execution in case No. 14736, which claims were made and filed after return of the constable, after rendition of final judgment in case 14736, more than five days after delivery of writ of execution to Coleman and more than one year after attachment; that by reason of, and after failure of Coleman to proceed with the execution, his encouragement for the filing of third party claims, his omissions and misconduct, appellant filed affidavit of claim of said personal property April 27, 1936; that about April 27th, Coleman demanded that Carrie B. Aker and appellant furnish a bond of indemnity against third party claims, which neither were able to provide by reason of impoverishment; that about May 1, 1936, Coleman commenced an interpleader action against third partyclaimants requesting they be compelled to interplead concerning their claims, the result being that the district court upheld the claims and contentions of appellant and adjudged that other claimants had no valid claims and directed and required Coleman to forthwith deliver to his successor all personal property theretofore attached and levied on in case No. 14736 for further proceedings under the execution, but that Coleman failed, neglected and refused to comply because a large part of the personal property had been disposed of by Peasley Transfer & Storage Co., with whom it had been left by Coleman, without authority of the court and consent of appellant; that Coleman refused, neglected and failed to turn the personal property over to his successor, or to make return to his successor showing to what extent he had executed the execution; that the remaining property was sold by Coleman's successor for $ 39 bid by Peasley Transfer Co., $ 12.35 being applied toward satisfaction of the judgment and the balance going for storage charges incurred by Coleman, and sheriff's costs.The following exhibits were attached to and made a part of the complaint; the bond of the sheriff, executed by Hartford Accident and Indemnity Co.; official oath of Coleman; execution in case No. 14736; writ of attachment, April 6, 1935, and return of constable and inventory; notice of sheriff's sale; judgment and decree in the interpleader action; list of property levied on by Coleman; claim of appellant to property.

To the amended complaint respondents demurred on the ground each cause does not state facts sufficient to constitute a cause of action, that certain paragraphs are uncertain, ambiguous and unintelligible; that the second and third causes of action are barred by the statutes of limitation, and that paragraph III of the fourth cause of action is immaterial, irrelevant and redundant.A motion to strike various portions of the amended complaint was also interposed.

The general demurrer to the amended complaint was sustained and upon appellant's refusal to plead further the court ordered the cause dismissed with prejudice and from the judgment of dismissal this appeal is taken.

Appellant assigns as error, among others, that the court erred in sustaining the demurrer to the amended complaint and to each of appellant's causes of action, in sustaining the motion to dismiss and in...