Callan v. Sether

• Decision Date: 10 February 1913
• Parties: DENNIS CALLAN, Plaintiff and appellant, v. WILLIAM SETHER, Defendant and respondent.
• Court: South Dakota Supreme Court

31 S.D. 80, 139 N.W. 786 (1913)

DENNIS CALLAN, Plaintiff and appellant v WILLIAM SETHER, Defendant and respondent South Dakota Supreme Court Appeal from Circuit Court, Stanley County, SD Hon. Lyman T. Boucher, Judge Reversed C. A. Bennett Attorney for Appellant. H. H. Potter Attorney for Respondent. Opinion filed February 10, 1913

POLLEY, J.

During the month of April, 1909, the plaintiff leased from one Henry Eberhard the N.W. 1/4 of section 10, in Ash Creek township, in Stanley county, belonging to said Eberhard, and also the quarter section adjoining this on the north, known as the Leach land. The lease was verbal, but the consideration was paid in advance. Plaintiff was to use the land for grazing or for cutting hay, or any other use to which he wished to put it. Eberhard reserved for himself a small piece of garden land, or "truck patch," as he called it, but agreed with plaintiff, at the time of making the lease, that he would fence his garden, and that, if plaintiff's cattle got into it, it would not cost plaintiff anything. Plaintiff used the leased land for grazing purposes from the time of making the lease until the 3rd day of July, 1909.

Early in the morning of July 3d Eberhard gathered 98 head of plaintiff's cattle on or near the leased premises in section 10, and drove them to a corral, alleged to be the town pound, situated on the S.E. 1/4 of section 33, in Ash Creek township, and owned and occupied by the defendant. Plaintiff took up the trail of his stock shortly after Eberhard started with them, and followed them to defendant's place, where he arrived very shortly after they had been put into said corral, and demanded that they be released and delivered to him. This demand was refused, and the cattle were retained by defendant for four days. Plaintiff brought this suit in claim and delivery, alleging in his complaint, after a particular description of his stock, that they were wrongfully detained by the defendant; that they were not properly fed or watered while in defendant's possession; and that, because of their not having been properly fed and watered, the cattle depreciated in value, to plaintiff's damage, in the sum of $500. He prayed for the recovery of immediate possession of his stock and his damage in the sum of $500. He furnished a bond, and had the stock returned to him by the sheriff.

The defendant, in his answer, justified his detention of plaintiff's stock as follows:

"For a separate and specific defense, the defendant alleges that the cattle described in the complaint were placed in the Ash Creek township pound for the purpose of having them held there for damages done to the growing crops, corn, grain, vegetables, and garden of Henry Eberhard, which damage was claimed by the said Henry Eberhard and which damage amounted to the sum of $35, and the said cattle were kept in said pound for the purpose of satisfying said damages; that said damages had not been paid at the time the cattle were taken by the writ of replevin out of the possession of the defendant; neither had the plaintiff offered to pay any of the said damages claimed by the said Henry Eberhard; that the said cattle were placed in the said pound on or about the 3d day of July, A. D. 1909, and were kept in said pound by the said poundmaster, Wm. A. Sether, up to and including the 7th day of July, A. D. 1909, and the charges for keeping the said cattle in said pound during said period at 25 cents a head is the sum of $98, and for taking into said pound 98 head of cattle at 20 cent a head is $19.60, the amount of hay fed to said cattle during said four days is six tons, at $5 a ton, or $30, making a total of $157.60, which sum of $157.60 was then due and owing to the poundmaster, Wm. A. Sether, of Ash Creek township, Stanley county, S.D., and which sum was demanded of the plaintiff prior to the commencement of this action, and at the time the cattle were taken by the writ of replevin in this case; but the plaintiff refused and neglected to pay the said sum of $157.60 for the care and keeping of the said cattle in the pound of Ash Creek township, Stanley county, S.D. The plaintiff also neglected and failed and refused to pay the sum of $35 damages due to Henry Eberhard for the damages done to his vegetables, garden, and premises on section 9 and section 4, township 4, range 18 E. B. H. M., which damages were due and owing to the said Henry Eberhard, and the cattle described in the complaint had been, and were, held for the satisfaction of said damages, expenses, and costs and fees, as provided by law, all of which the plaintiff failed, refused, and neglected to pay before taking the cattle. Defendant further says that the plaintiff never made any demand whatsoever upon this defendant in person for the possession of said cattle prior to the commencement of this action; and that there now is due and owing to the defendant the sum of $192.60 for the taking and impounding of the cattle described in the complaint, and for the keeping, for the feed furnished to them, and for the damage done to Henry Eberhard's premises as set forth herein, all of which was due and owing by plaintiff to defendant as poundmaster at the time this action' was commenced."

He also set up a counterclaim, in which he asked for the return of the cattle or $192.60 in case they could not be returned, and for the costs and disbursements of this action.

The case was tried to a jury. At the close of the trial, plaintiff and defendant each moved the court to direct a verdict in his favor. Plaintiff's motion was denied, and the court directed the jury to return a verdict in favor of defendant, which they did, fixing the value of the cattle at $2,940, and fixing the value of defendant's lien thereon at $113.70, whereupon the court entered judgment, awarding the defendant possession of the cattle, the amount of the lien as fixed by the jury, and his costs and disbursements taxed at $243.55, amounting in all to the sum of $357.25. The court denied plaintiff's motion for a new trial, and he brings the case here on appeal. The plaintiff saved exceptions to practically all the rulings of the court, and numerous errors are assigned upon these rulings. Consideration of such assignments as are necessary to arrive at a conclusion of the case will be taken up in their order.

At the beginning of the trial and before the introduction of any evidence, the defendant gave notice that he would not make any claim for damages due Eberhard by reason of the trespass of plaintiff's cattle, and moved to strike out all that portion of his answer pertaining to such damage. The plaintiff objected, which objection was overruled by the court, and this ruling is assigned as error. The objection was not well taken. The claim for damages, while not separately pleaded, constituted an independent cause of action, but it was in favor of Eberhard, who was not a party to the suit, and the same would have been stricken out by the court upon the motion or demurrer of the plaintiff. Evidence to prove the allegation of damage to Eberhard, except for the purpose of justifying defendant's detention of the cattle, would not have been admissible in this case, even though the allegation had been allowed to stand.

The next assignment to be considered brings up the validity of the defendant's appointment as poundmaster of Ask Creek township, the location of the town pound, and the right of Eberhard to have the plaintiff's stock impounded. The record of the proceedings of the town meeting and meeting of the town board of supervisors held during the months of March and April preceding the alleged trespass were offered, and, over the objection of plaintiff's counsel, admitted in evidence from these proceedings it appears that one Martin Russell was elected as poundmaster, and that the town pound was located on the N.W. 1/4 of section 34, in Ash Creek township. This was done by the electors of the township. Russell refused to qualify. This left a vacancy in the office of pound-master, and the board of supervisors, acting under authority of section 1045 of the Political Code, appointed the defendant to fill the vacancy. He immediately qualified, and became the duly appointed and legal poundmaster of the township. The board had power to fill this vacancy, and his appointment was, therefore, legal.

The board of supervisors at the same meeting also undertook to change the location of the pound, and locate it on the S.E. 1/4 of section 33 of Ash Creek township. This last act the board was without authority to perform, and the town pound remained upon the N.W. 1/4 of section 34.

Section 1008 of the Political Code provides:

"The electors of each town have power, at their annual meeting: 1. To determine the number of pound masters and the location of pounds ... (2) To select such town officers as are required to be chosen. ... (5) To make all rules and regulations for impounding animals."

Section 1003 provides:

"Each organized township in the state of South Dakota is a body corporate, and has capacity ... (4) To pass bylaws or ordinances for the government of such township and for the protection of the lives and property of its inhabitants, and to enforce the same in its corporate name before any justice of the peace in such township; and the process of procedure shall be the same as other actions before justices of the peace, and to make such orders for the disposition, regulation or use of its corporate property as may be deemed by its board of supervisors to be conducive to the best interests of its own inhabitants."

It will be noted that, under section 1008, it is the electors who determine the number of poundmasters and the location of pounds. In case of a vacancy in any town office the board of supervisors has the power, and it is made their duty, to fill the vacancy by appointment; but this power does not extend to the determining of the...