Bank of Commerce, Forsyth, v. U.S. Fidelity & Guaranty Co.
| Decision Date | 06 July 1920 |
| Docket Number | 4115. |
| Citation | 194 P. 158,58 Mont. 236 |
| Parties | BANK OF COMMERCE, FORSYTH, v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Rosebud County; Charles L. Crum, Judge.
Action by the Bank of Commerce, Forsyth, Mont., against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, and an order denying its motion for new trial defendant appeals. Judgment and order affirmed.
p>Page Gunn, Rasch & Hall, of Helena, for appellant.
Collins Campbell & Wood, of Forsyth, for respondent.
The respondent bank, plaintiff below, recovered a judgment against appellant as surety upon the official bond of the sheriff of Rosebud county for the sum of $1,557.43, upon a cause of action growing out of the following state of facts:
In November, 1913, one E. S. Haskell commenced an action against the firm of Woolston & Holland, a copartnership conducting a garage and automobile business in the town of Forsyth, in said county, to recover a balance of about $5,000 alleged to be due him from said firm for goods sold and delivered to them. On the same day a writ of attachment was issued out of the district court of that county, and by the sheriff thereof levied on property supposed to belong to the firm. The respondent bank filed and served upon the sheriff a third-party claim for the property so attached. On November 25th the plaintiff in the attachment suit delivered to the then sheriff (William E. Moses) a bond securing the sheriff in the retention of the attached property. In the following January the sheriff was killed, and John Van der Pauwert, who had theretofore, during the incumbency of said Moses, served as undersheriff, was on February 4th appointed and duly qualified as the successor of Moses. On June 30th, and while the suit in attachment was still pending, the respondent bank commenced an action in claim and delivery against Van der Pauwert alone. Failing to appear, in due course a default was taken against him, and a judgment rendered and entered determining that the possession and ownership of the property was in the respondent bank at the time of the levy of the attachment upon the property in question, and that defendant therein was in possession thereof and wrongfully withholding the same from the plaintiff. The judgment also provided for a return of the property to the bank, or for its value in case delivery could not be had. On January 28, 1916, a writ of execution was issued in the claim and delivery action for the return of the property to the bank. Upon service of the writ on Van der Pauwert, he responded that he was unable to return any of the property. No return appears to have been made on the writ of execution. On February 18, 1916, this action was commenced against appellant on the official bond of Van der Pauwert for his neglect and refusal to return the property so attached, or its value in money.
It appears in evidence that the defendant Van der Pauwert was acting as undersheriff for Moses during the time of the occurrences in question; that he had full knowledge of the business, both before and after his assumption of the office of sheriff; that he was conversant with the transaction attending the seizure of the property under attachment proceedings at the suit of E. S. Haskell v. Woolston et al.; that while undersheriff he subjected some of the articles under attachment to his own personal use, and, as sheriff, took actual possession of it all, retained it during the pendency of all the proceedings now before us, and never did deliver the property to the plaintiff in response to its demand upon him. At the close of all the testimony both the plaintiff and defendant moved the court to direct a verdict in its favor, upon the ground that in the then state of the evidence there was no substantial issue of fact touching the immediate delivery, followed by an actual and continued change of possession, of the property subjected to attachment at the suit of Haskell v. Woolston et al. The court denied the motion of the defendant, granted the motion of plaintiff, and directed a verdict in plaintiff's favor. The defendant, after the ruling against it, did not request the court to submit that issue to the jury.
In this condition of the case, the question of fact involving the delivery of the property by Woolston to the plaintiff and the continued retention of it by plaintiff was for determination by the court, as held in the recent decision of this court in the case of Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 P. 155. The district court having found that issue in favor of the plaintiff and rendered judgment in its favor, it is now left for us to say whether there was in the case below a substantial issue of fact upon which the judgment can legally rest.
The pleadings put in issue the possession and...
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