Duncan v. Burchinell
| Decision Date | 12 March 1900 |
| Citation | 14 Colo.App. 471,61 P. 61 |
| Parties | DUNCAN v. BURCHINELL, Sheriff. |
| Court | Colorado Court of Appeals |
Error to Arapahoe county court.
Action by William Duncan against William K. Burchinell, sheriff. From a judgment in favor of defendant, plaintiff brings error. Reversed.
Chas. H. Dyett and J.W. Horner, for plaintiff in error.
Hugh Butler, for defendant in error.
On the 24th day of November, 1894, William K. Burchinell, as sheriff of Arapahoe county, by virtue of a writ of attachment issued in a suit against William Duncan and another, then pending in the county court of that county, attached and took into his possession 51 sacks of oats, the property of William Duncan. Duncan was present when the property was taken, and service of the writ was made upon him at that time. When the officer communicated his purpose to Mr Duncan, the latter asked him if he had a bond, and, upon his replying that he had, said, "All right, go ahead." The sheriff then took the property and removed it from the premises. Two days afterwards Duncan served Burchinell with a written notice that he claimed the property taken as exempt from levy under the writ, and that unless it was returned within 48 hours, he would bring suit for three times its value, pursuant to the statute. The notice was served by Duncan himself, and upon receiving it Mr. Burchinell said that, unless he was furnished with a good and sufficient bond, he would have to return the oats. Four days afterwards the attachment plaintiff furnished the sheriff with an indemnifying bond, and the demand for the return of the property was, for the time being, disregarded. This action is against Burchinell for the recovery of three times the value of the property. It was brought on the 4th day of December, 1894, before a justice of the peace. On the 11th day of December the defendant brought the oats back, and offered them to the plaintiff, but the latter refused to receive them, and they were left under a shed near his house. On the 12th day of December the defendant paid the costs which had accrued in the attachment suit. On the 14th this cause was tried, and judgment rendered for the defendant. The plaintiff made his appeal to the county court, where a trial without a jury resulted in a judgment for the plaintiff. By agreement of parties, this judgment was vacated, and a new trial ordered. The cause was then tried in the presence of a jury, and after the evidence on both sides was heard the court directed the jury to find for the defendant, and they returned their verdict accordingly. Some time after the oats were placed in the shed,--but when is uncertain,--they were removed, and put into the plaintiff's granary.
The direction of a verdict by the court gives rise to the only important questions in the case. It is provided in our statute concerning exemptions that working animals to the value of $200, when owned by any person being the head of a family, as well as the necessary food for such animals for six months, shall be exempt from levy and sale upon any execution, writ of attachment, or distress for rent. Gen.St. § 1866. The statute also contains the following provision: "If any officer or other person, by virtue of any execution of other process, or by any right of distress, shall take or seize any of the articles of property hereinabove exempted from levy or sale, such officer or person shall be liable to the party injured for three times the value of the property illegally taken or seized, to be recovered by action of trespass, with costs of suit." Id. § 1868. The evidence was that the plaintiff was the head of a family; that he was the owner of certain working animals; that the value of these animals did not exceed $200; and that the oats in question, together with all the other food that he had, was not more than sufficient to supply the animals for six months. It has been held by our supreme court that as to property which by law is absolutely exempt from liability, it is unnecessary for the debtor to claim it as exempt; that the officer is bound to know that the property is exempt; that it is his duty to leave it with the debtor; and that, under such circumstances, the seizure of it is a trespass. Harrington v. Smith, 14 Colo. 376, 23 P 331. In that case the levy was made in the absence of the debtor, and without his knowledge, so that there was not, and could not have been, any waiver of his rights. This case resembles that in the fact that the officer took property which it was his duty to know was exempt, but it is unlike that in the fact that the seizure was made in the presence of the debtor. If the latter had stood by, and said nothing, what the effect of his silence would have been, it is unnecessary to decide, for he was not silent. After ascertaining that an attachment bond had been given, he told the officer to go ahead. Whether his language might be regarded as a waiver of his exemption claim is a question which counsel have not discussed, and upon which, therefore, we express no opinion: but we feel certain of this, at least: that it warranted the officer in proceeding, so that in taking the property he was not a trespasser. The sheriff's act not being unlawful, it was incumbent upon the attachment defendant, if he proposed to assert his right to the property, to make formal demand for its return, and this he did two days afterwards. It then became the duty of the sheriff to return the property to him within a reasonable time. Madera v. Holdrege, 4 Colo.App. 126, 35 P. 52. He did attempt to return it, and did return it, in so far as he could return it at all, one week after this action was commenced. The sheriff was not bound by the time limited in the notice; but, if a reasonable time had elapsed before the suit was brought, then at the commencement of the action his liability was fixed, and any...
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