Gerardi v. Caruolo
| Decision Date | 05 June 1905 |
| Citation | 27 R.I. 214,61 A. 599 |
| Parties | GERARDI v. CARUOLO. |
| Court | Rhode Island Supreme Court |
Exceptions from District Court, Providence County.
Assumpsit by Antonio Gerardi against John Caruolo. Heard on exceptions to ruling of district court. Exceptions sustained.
Argued before DOUGLAS, C. J., and DUBOIS and BLODGETT, JJ.
Howard B. Gorham, for plaintiff. Frank H. Wildes, for defendant.
The plaintiff, a deputy sheriff, served the writ in an action brought by the defendant against one Ronato Pennachio by attaching certain of his mortgaged personal property, which thereafterwards was kept in Pennachio's shop for 79 days, and then placed in storage by the plaintiff. The action was prosecuted to final judgment, and an execution issued in favor of Caruolo, which was levied upon the property so attached and stored by the plaintiff, who duly advertised and sold the same at public auction to John Caruolo, judgment creditor named in said execution, for the sum of $175, which was less than the amount of the mortgage upon the same. The defendant refused and refuses to pay the amount of his bid at the execution sale, and the plaintiff has brought this suit against him to recover, not only the said sum of $175, but also the following items:
Oct. 29, 1 day's keeper's fees .........
From Oct. 30 to Jan. 16, for 79 days' custody fee ......................
Nov. 16, for carting goods to storage house ............................
From Nov. 16 to Jan. 16, for storage of goods ............................
Jan. 16, for auction fees .........
2 62
Jan 4, for advertising fees ..........
1 00
Jan. 4, for 10 days' advertising in Evening Telegram ............
For service of execution .........
75
For travel ......................
20
Upon the trial in the district court, the court found that the legal fees and expenses of the plaintiff in the service of the writ and execution amounted to $83, that at the execution sale the defendant by his attorney bid the sum of $175 for the goods levied upon, that the plaintiff was induced by the defendant and his attorney to leave the place of sale and go to the office of the defendant's attorney to receive payment of the amount of said bid, that said sum was not paid and has not been paid since, and that said goods are mortgaged to an amount greater than $175. On these findings the court ruled that defendant was indebted to the plaintiff in said sums of $83 and $175, and rendered decision for the plaintiff for $258 and costs. The court, in summing up, found that the bid was made in the interest of Caruolo, and held: "(1) That the officer could choose between the carrying out of the sale and suing for the amount bid, or could advertise and resell; (2) that Caruolo was liable for the $175, the amount bid at said sale; (3) that in the absence of a specific agreement the officer could pursue the plaintiff, and found that there was no specific agreement in this matter; (4) that the defendant was liable for all items of costs presented in the bill of particulars of the plaintiff, except the items of $30 custody, accruing between December 1st and December 31st, and the cost of cartage of $12 for November 16th, costs accruing before the issuance of the execution which were not included in the execution." The defendant excepted to these rulings, allowances, and decision, and claims that the court erred in its rulings on the law and that the decision is contrary to the evidence and should be reversed.
1. The action, so far as the items of costs on execution are concerned, was prematurely brought. Under the provisions of Gen. Laws R. I. 1896, c. 247, § 17, "all bills of cost shall be taxed by the clerks of the respective courts, and, when objected to, shall be revised or approved by one of the justices of the division in which the judgment or order is entered, or by the justice of the district court, when such case is in a district court;" and by chapter 295, § 13, thereof, "the common pleas division of the Supreme Court or district courts, upon petition made by any sheriff or other officer setting forth the facts on oath, may allow such fair...
To continue reading
Request your trial
-
Wyoming Central Irr. Co v. LaPorte
...proceedings are not recoverable against judgment debtor unless taxed and approved by court order (Hawkins v. Mumford, 5 Denio 355; Gerard v. Caruolo, 61 A. 599; Gardner Brown, 22 Ind. 447; Beeman & Cashin Co. v. Sorenson, 15 Wyo. 450; 89 P. 745; Fletcher v. Norrell, 44 N.W. 133). Sheriff is......
-
Fitch v. Firestone
...here, because it is clear that in Rhode Island the sheriff may bring an action against a defaulting purchaser. Gerardi v. Caruolo, 1905, 27 R.I. 214, 61 A. 599; Upham v. Hamill, 1877, 11 R.I. A second exception to the general rule exists in those jurisdictions where persons other than the s......
-
McCarthy v. Hughes
...The defendant simply claims that he is not the party liable therefor. The question here is not such as was raised in Gerardi v. Caruolo, 27 R. I. 214, 61 Atl. 599, where the sheriff was held to have brought his action prematurely because the costs had not been allowed by the court That case......
-
Gautieri v. Cianciarulo
...of law which he was unfitted to determine, involving the sufficiency or validity of the mortgage. In the case of Gerardi v. Caruolo, 27 R. I. 214, 61 Atl. 599, cited by the defendant, this court has said: "The duty of the officer is to sell for cash to the highest bidder who will pay. If he......