Beeman & Cashin Mercantile Company v. Sorenson

• Decision Date: 15 April 1907
• Parties: BEEMAN & CASHIN MERCANTILE COMPANY v. SORENSON
• Court: Wyoming Supreme Court

89 P. 745

15 Wyo. 450

BEEMAN & CASHIN MERCANTILE COMPANY v. SORENSON

Supreme Court of Wyoming

April 15, 1907

Rehearing Denied June 10, 1907, Reported at: 15 Wyo. 450 at 464.

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

The facts are stated in the opinion.

Affirmed.

J. H Ryckman, for plaintiff in error.

With the judgment in the main suit and the overruling of the motion for new trial the case was terminated, and the court lost jurisdiction, and the liability for costs was settled. (3 Ency. L., 184; 5 Ency. Pl. & Pr., 109.) The first allowance of the sheriff's expenses amounted to a judgment against defendant, and the motion to vacate should have been made within ten days. (R. S. 1899, Sec. 3748; Ch. 66, Laws 1901.) Not having been made in that time, the motion did not carry the matter over the term. (17 Ency. L., 816; O'Keefe v. Foster, 5 Wyo. 343.) The court had no jurisdiction or power to impose the expenses on the plaintiff. (R. S. 1899, Secs. 4022, 3789, 1114.)

P. W. Spaulding, for defendant in error.

The indorsement by the judge upon the sheriff's application of the words "order allowed" was not a judgment. It was at most but an order. (R. S. 1899, Sec. 3751.) The motion to vacate carried the order over the term, so that the court did not lose jurisdiction. The property was attached on an alias writ for which there is no authority in justice court. (Cheeseman v. Fenton, 80 P. 823 (Wyo.); Drake on Attachments (5th Ed.), Ch. 1; Carr v. Brew. Co., 94 Ill.App. 225; Woods Co. v. Bank, 172 Ill. 192; Dye v. Crary, 78 P. 533; Wilson v. Striker, 66 Ga. 575; Buck v. Coy, 72 Ill.App. 160; R. S. 1899, Sec. 4452.)

Defendant had the right to show that he did not own the attached property, and thus relieve himself from liability for the expense of its keeping. The evidence sustains his contention as to ownership.

POTTER, CHIEF JUSTICE. SCOTT, J., and MATSON, District Judge, concur. MR. JUSTICE BEARD having announced his disqualification to sit in the case, HON. RODERICK N. MATSON, Judge of the First Judicial District, was called in to sit in his stead.

OPINION

POTTER, CHIEF JUSTICE.

The Beeman & Cashin Mercantile Company brought an action in justice court against Henry Sorenson for the recovery of a money judgment, and secured the issuance of a writ of attachment at the commencement of the suit. Subsequently an alias writ of attachment was issued, under which the deputy sheriff attached certain mares as the property of the defendant. The trial before the justice of the peace resulted in a judgment for the defendant and an order discharging the attachment and releasing the attached property. An appeal was taken to the District Court, where a trial was had de novo, and a judgment rendered for the plaintiff for a part of its claim and costs, and execution was awarded, but without any reference in the judgment to the attachment or the attached property. The judgment was rendered April 10, 1905. On May 5, 1905, the defendant paid to the clerk of court the amount of the judgment, together with the costs, excepting certain expenses incurred by the deputy sheriff in keeping and caring for the attached property. It does not appear, however, whether or not the amount of those expenses had been certified by the sheriff to the clerk and attempted to be entered by the latter as costs in the case at the time of defendant's payment; but no order allowing the amount had then been made, nor had there then been any application for such order, so far as the record discloses.

Subsequently, and during the same term of court, the plaintiff filed an affidavit of the deputy sheriff, pursuant to the provisions of Section 1114, Revised Statutes of 1899, showing the expense necessarily incurred in the keeping and caring for the attached property, and praying an allowance of the same to the sheriff. At the foot of that affidavit was endorsed over the signature of the trial judge, "Order allowed," though no formal order was entered. Afterward, and at the same term, the defendant Sorenson filed a motion to vacate the supposed order upon several grounds, one being that the defendant had not been notified of the application, and another that defendant was not the owner nor in possession of the property attached at the time of the attachment or at any time subsequently, and had no interest therein. That motion went over the term without action, and at the next succeeding term the previous order, which was referred to as the "so-called order," allowing the officer's expenses in the matter aforesaid, was vacated. Thereupon the plaintiff filed another and similar affidavit, together with a motion that the amount of the expense be allowed the sheriff.

The last mentioned motion was opposed by written objections filed on behalf of the defendant supported by affidavits. The several objections briefly stated were as follows: (1) Because plaintiff's said motion was not filed until after the expiration of the April term at which the final judgment in the case had been rendered. (2) Because the property had not been taken under any valid writ of attachment. (4) Because the alias writ of attachment was invalid. (5) Because the property was not at the time when taken by the sheriff or at any time subsequent thereto the property of or in the possession of defendant, and that the defendant did not have any interest therein or any part thereof. The affidavits supporting such objections tended to show that the attached property did not belong to the defendant when the attachment was levied or at any time afterward, but that the same belonged to the wife of defendant, and that before the execution of the writ, defendant's attorney had so notified the officer. Counter affidavits were filed by plaintiff upon the question of the ownership of the property. Upon a hearing the court denied plaintiff's motion, and entered judgment against the plaintiff for the amount of the expense so incurred by the sheriff, together with accruing costs for the care of the attached property, and ordered that execution issue therefor. A motion was afterward filed by the plaintiff to retax such costs by assessing them against the defendant instead of the plaintiff. That motion was denied, and the plaintiff brings the case here on error.

The ultimate question involved is whether the defendant should be held liable for the expenses incurred by the sheriff in the care of the attached property. Both parties, however, have raised questions relative to the jurisdiction of the trial court after the expiration of the term at which the judgment in the case upon the merits of the main issue was rendered. The defendant insisted by his objections to the motion finally determined by the order complained of, and here contends, that if for no other reason the motion was properly denied because it was not filed until the term succeeding the one at which judgment had been rendered. The plaintiff, on the other hand, contends that the court was without jurisdiction to vacate the order of the preceding term allowing the sheriff's expenses, and that the subsequent orders are for that reason void. We do not think there is any merit in the contention of either party as to want of jurisdiction. In the first place defendant's motion to vacate the supposed order of allowance was filed at the same term, and not having been heard at that term was carried over until the succeeding term for hearing and determination, and necessarily for that purpose carried over with it the order which it assailed, assuming that the defendant had a right to file the motion, which can hardly be denied, if, as supposed, the effect of the order was to place the liability for the sheriff's expenses upon the defendant. He had not been heard on the matter, and one ground of his motion to vacate the order was the alleged fact that he had not been notified of the application upon which it was granted. It might be suggested that whether the order first made imposed the expense upon the defendant would perhaps be doubtful, since the order itself contained no such direction and no prayer in that respect was embodied in the application on which it was granted, and the attachment was not in any way referred to in the previous judgment. But, however that may be, it is at least clear that the defendant was not estopped or barred by anything in the judgment from opposing the subsequent attempt to fasten the liability for the expense upon him; and, to avoid the possible construction that the costs of suit carried by the judgment would cover such expense, it was certainly proper for the defendant, who had paid the face of the judgment and all costs taxable at the time of payment, to move for a vacation of the order of allowance, assuming the judge's endorsement upon the officer's affidavit to have had the effect of such an order. And it cannot be doubted that its vacation was warranted upon the ground that it had been granted without notice to defendant and an opportunity on his part to be heard, so far at least as it might be held to impose the additional liability upon him.

We suppose that an officer's application for an order allowing expenses incurred by him in keeping attached property should be made within a reasonable time, to be determined upon the circumstances of each case, and that unreasonable delay, where the situation has so changed without fault of the party to be charged as to render the allowance unjust, might authorize on that ground a disallowance of the claim; but there is nothing in the statute or the nature of the application which necessarily requires the application or the order to be made at the same term as the judgment in the main case; and the previous order having been vacated at the...