Evans v. Thurston
| Decision Date | 18 March 1880 |
| Citation | 53 Iowa 122,4 N.W. 895 |
| Parties | EVANS & SON v. THURSTON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Jones district court.
Action against the defendant, as constable, upon his official bond, for failure to hold and subject to sale certain personal property which had been seized by him upon execution. The evidence tended to establish the following facts: After the levy the defendant was taken sick, and by reason of his sickness he turned the property levied on over to one Noachick, another constable of the same township, who received it, but immediately afterwards returned it to the defendant.
The defendant then notified the plaintiffs that he was not able to have charge of the property by reason of his sickness; that he turned it over to Noachick, but that it had been returned to him, and that the plaintiffs must take possession. The plaintiffs refused to do anything to relieve the defendant of it, and it was finally taken by one Mary Davis, who claimed to be the owner of it. The answer set up the defendant's sickness and inability, and his action in regard to the property, and averred that the execution defendant was not the owner of it. Upon the trial there was evidence tending to show that Mary Davis was the owner of it. Other facts are stated in the opinion. There was a trial by jury. Verdict and judgment for defendant. Plaintiffs appeal.E. Keeler, for appellants.
Wing & Fiske, for appellee.
The court instructed the jury to the effect that if the defendant, after the levy and seizure of the property, was taken sick, and by reason of his sickness was unable to take charge of the property and turned it over with the execution to another constable of his township, and notified the plaintiffs of his sickness before the property was lost, and requested them to take charge of it, and they refused and neglected to do so, and the defendant used all the means in his power to preserve the property, he was not liable for its loss. The giving of this instruction is assigned as error. The appellants maintain that there is no law by which a constable who has seized property upon execution can, in case of sickness and disability, relieve himself of it by turning it over to another constable. The argument is that if the law should allow the constable who has made the levy to thus relieve himself, it would follow that it would be the duty of the constable to whom the property should be tendered to relieve it. But it is said that this would be unjust to the constable receiving the property because he would have no means of indemnity.
In our opinion the position is not well taken. It appears to us that if the original officer was entitled to indemnity the receiving officer might properly demand indemnity, and if indemnified that he could not properly refuse to receive the property and execute the writ. At any rate, a constable who becomes incapable of discharging his duties, by reason of sickness, must be allowed to relieve himself in some way of responsibility. It is held, it is true, in Tredenstein v. McNier, 81 Ill. 208, that a sheriff cannot be relieved of responsibility by reason of sickness. But this is because he may and should have a deputy competent to discharge the duties of the office. In the same case it is intimated that a constable may be relieved by turning over the property which he has seized to another constable of the same township. It appears to us that this is the correct rule, and we see...
To continue reading
Request your trial