Foster v. Dischner

• Court: South Dakota Supreme Court
• Writing for the Court: MORIARTY, C.
• Citation: Foster v. Dischner, 51 S.D. 102, 212 N.W. 506 (S.D. 1927)
• Decision Date: 07 March 1927
• Docket Number: 5764
• Parties: ART FOSTER, Plaintiff and respondent, v. GEORGE M. DISCHNER et al, Defendants and appellants.

51 S.D. 102

212 N.W. 506

ART FOSTER, Plaintiff and respondent,

v.

GEORGE M. DISCHNER et al, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge File No. 5764—Affirmed Parliman & Parliman, Sioux Falls, SD Attorneys for Appellants. Krause & Krause, Dell Rapids, SD Attorneys for Respondent. Opinion filed March 7, 1927

MORIARTY, C.

This is an action on an undertaking in attachment. In February, 1920, the appellant Dischner brought suit against the respondent, and in that action secured a warrant of attachment on the ground that respondent was about to assign, dispose of, and secrete his property with intent to defraud his creditors. Under the warrant so secured the sheriff made a levy, or purported levy, upon certain cattle and hogs which respondent was then feeding for market. The property described in the sheriff’s notice of levy was covered by a chattel mortgage, and no payment, tender of payment, or deposit of the amount due on the mortgage was made.

Instead of taking this property into his actual possession, the sheriff allowed it to remain in respondent’s custody, taking from respondent a receipt stating that he (respondent) has the property described in the notice of levy, “and keep the same to the order of the sheriff of Lake county, S. D.”

The respondent filed affidavits. traversing each of the allegations of the affidavit upon which the warrant of attachment was secured, appellant presented no further showings in support of the allegations of his original affidavit, and the court made an order discharging the attachment, on the ground that the warrant had been improvidently issued. Thereafter the action was tried, and the verdict and judgment were for the defendant, respondent herein.

Respondent began the instant case to recover damages alleged to have been suffered from the attaching of his property. The case was tried to a jury which returned a verdict for respondent. A new trial was granted by Judge Fleeger. The second trial was before Judge Medin, and resulted in a verdict for respondent in the sum of $942.38. The trial judge submitted to the jury special interrogatories as to each of the several items of damage claimed by respondent in his complaint, and the answers found the following amounts due respondent:

For care of hogs and cattle during time respondent was prevented by levy from, selling as intended $ 60.00

For attorneys’ fees in the securing of release of levy 150.00

Depreciation in value of hogs and cattle 238.00

Value of feed fed to hogs and cattle held for sale 469.38

Time spent by respondent in securing release of levy 25.00

Total $942.38

Judgment was entered upon this verdict, but, upon motion for a new trial, Judge Medin decided that all items of the recovery except those for attorneys’ fees, for care of stock, and time spent in securing release of levy, should be stricken out, and the judgment reduced to $235. Upon respondent consenting to such reduction, judgment for $235 and costs was entered, and the former judgment vacated. From the $235 judgment and the order denying a new trial this appeal is taken.

In the assignments...