Applebaum v. Stanton

• Decision Date: 25 March 1929
• Docket Number: 5142
• Citation: 47 Idaho 395,276 P. 47
• Parties: HARRY APPLEBAUM, Respondent, v. S.D. STANTON and NATIONAL SURETY COMPANY, Appellants
• Court: Idaho Supreme Court

276 P. 47

47 Idaho 395

HARRY APPLEBAUM, Respondent, v. S.D. STANTON and NATIONAL SURETY COMPANY, Appellants

No. 5142

Supreme Court of Idaho

March 25, 1929

CARE OF ATTACHED PROPERTY-DIRECTION OF PLAINTIFF-GENERAL RULE-STATUTORY LIMITATIONS-INSTRUCTIONS-HARMLESS ERROR-INVITED ERROR-NEW TRIAL-DISCRETION OF TRIAL COURT.

1. In an action against a sheriff for damages for refusal to levy on and sell attached property, instruction that keeper appointed at instigation, request or suggestion of plaintiff becomes agent of plaintiff, for whose act sheriff is not liable, held erroneous, as ignoring C. S., sec. 3605, which requires directions to sheriff by party or attorney to be in writing, signed by such party or attorney.

2. Erroneous instruction that sheriff is not liable in damages for acts of keeper whose appointment was requested by plaintiff held harmless, where sheriff's failure to seize chattels on attachment was justified by fact that plaintiff made no effort to comply with C. S., sec. 6378, regulating attachment of mortgaged chattels and gave sheriff no direction to levy only on equity of redemption, plaintiff in any event not being entitled to recover.

3. Errors which could not have resulted to disadvantage of appellant cannot be basis for reversal of judgment.

4. A judgment will not be reversed on account of errors consented to or invited by appellant, where appellant has not been prejudiced thereby, particularly where instructions and rulings were in harmony with theory on which case was tried.

5. Trial court possesses a discretion in granting or refusing new trials, which should be exercised wisely, and appellate court will not reverse, unless patent abuse is manifest.

6. Where trial court predicated grant of motion for new trial exclusively on erroneous instructions, and it appears on review that such error was harmless, order granting new trial will be reversed.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. Hugh A. Baker, Judge.

Order granting new trial in action for damages. Reversed.

Order reversed. Costs awarded to appellants.

A. B Barclay, O. W. Worthwine and Hawley & Hawley, for Appellants.

The plaintiff in an attachment action has control of the writ and if he instructs a sheriff to appoint a particular person keeper of personal property, the sheriff is not liable for the negligence of the keeper. (1 Freeman on Executions, 3d ed., pp. 401, 402; 1 Shinn on Attachments, pp. 726, 727; Citizens' Nat. Bank v. Loomis, 100 Iowa 266, 62 Am. St. 571, 69 N.W. 443; Donham v. O. Wild, 19 Pick. (Mass.) 520; Willard v. Goodrich, 31 Vt. 596.)

A party will not be permitted to stand by and not make proper objection to testimony and then at a later time after the verdict raise that question. (Walling v. Walling, 36 Idaho 710, 214 P. 218; Burrow v. Idaho etc. R. R Co., 24 Idaho 652, at 660, 135 P. 838; Trask v Boise King Placers Co., 26 Idaho 290, at 298, 142 P. 1073; State v. Baker, 28 Idaho 727, at 737, 156 P. 103; 1 Thompson on Trials, 2d ed., p. 630, par. 693.)

O. C. Hall and E. D. Reynolds, for Respondent.

C. S., sec. 3605, reads as follows:

"Directions to Sheriff: No direction or authority by a party or his attorney to a Sheriff, in respect to the execution of process or return thereof, or to any act or omission relating thereto, is available to discharge or excuse the sheriff from a liability for neglect or misconduct, unless it is contained in a writing, signed by the attorney of the party, or by the party if he has no attorney."

California statute is identical to Idaho's. (See Kerr's Pol. Code, sec. 4166.)

And the supreme court of California has said in the case of Robinson v. Baker, 35 Cal.App. 318, 169 P. 694:

"Failure to obtain Plaintiff's written consent to release of attachment Sheriff liable.

"A sheriff who released an attachment on real property without obtaining the written consent of the attaching party as required by this section, and placed the attachment on money in escrow payable to the defendant, in consequence of which the plaintiff's judgment was not satisfied, is liable to plaintiff for the amount of his judgment."

ADAIR, District Judge. Budge, C. J., and Givens and Wm. E. Lee, JJ., concur.

OPINION

ADAIR, District Judge.

In an action on a debt, and as ancillary thereto, a writ of attachment issued. The sheriff duly made return that he had levied upon certain personal property of the defendants. After the entry of judgment in favor of plaintiff, execution was issued and delivered to the sheriff for service, but he returned same nulla bona. Demand was made upon him to levy upon and sell the attached property, and when this was not done the present action was commenced to recover from him, and the surety on his official bond, the amount of the judgment thus obtained. The jury returned a verdict for the defendants. Later a new trial was granted, the trial court clearly specifying in the order that the new trial was allowed because of two certain instructions given, which the court deemed erroneous. From this order the cause is here on appeal. The only question presented is whether the lower court erred in ordering a new trial upon the grounds assigned.

On the trial the plaintiff proved the facts first above stated, and offered some evidence as to the number, quantity and value of the various animals, crops and personalty enumerated and described in the sheriff's return to the writ. The answer was a general denial, and the defenses to the action sought to be made were that a deputy sheriff, acting under the express direction of respondent, had appointed a keeper selected and designated by the respondent himself, and that the sheriff was consequently not liable for the subsequent loss of the property; that the attached property, or some of it, was exempt from execution, the owners having presented claim for exemption in a legal manner; that the potatoes were, at the time of the levy, growing and in the ground, and not capable of manual delivery; and that all the property was covered by chattel mortgages of record, appearing valid on their face, and that the attaching creditor did not comply with C. S., sec. 6378, by paying or tendering to the mortgagees the amounts due under the mortgages, nor did he elect to attach only the equity of redemption of the mortgagors, for which reason the property was not subject to an attachment levy or lien.

The testimony of the deputy sheriff was to the effect that respondent gave him instructions to appoint a Mr. Poole as keeper. This testimony was admitted without objection whatsoever, except that in one single instance the record discloses the following:

"Q. Would you have appointed him keeper if Applebaum hadn't told you to?

"Mr. Hall: I object to that as incompetent, irrelevant and immaterial, as verbal instructions in no way bind the sheriff.

"Court: Objection overruled."

This objection was made after the witness had testified at length that Poole was appointed by him under instructions given by respondent. At no stage of the trial did counsel, by objection, suggestion, motion to strike evidence request for instructions or otherwise, raise the question or suggest to the court the relevancy of C. S., sec. 3605, which in effect provides that no direction to a sheriff by a party or his attorney, in respect to the execution of any process is available to such officer, to discharge or excuse him from liability for neglect or misconduct, unless contained in a writing signed by the party or his attorney. The cause was tried, in so far as this particular defense is concerned, on the theory that the plaintiff in an attachment suit has control of the writ, and if he instructs or requests the officer to appoint a particular person the keeper of...