Gray v. Noonan

• Decision Date: 30 May 1897
• Docket Number: Civil 438
• Citation: 50 P. 116,5 Ariz. 167
• Parties: W. T. GRAY et al., Defendants and Appellants, v. DANIEL NOONAN, Plaintiff and Appellee
• Court: Arizona Supreme Court

50 P. 116

5 Ariz. 167

W. T. GRAY et al., Defendants and Appellants, v. DANIEL NOONAN, Plaintiff and Appellee

Civil No. 438

Supreme Court of Arizona

May 30, 1897

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge.

Reversed.

W. H Williams, Cox & Street, and J. F. Moriarty, for Appellants.

Perley & Hancock, for Appellee.

Rouse J. Bethune, J., concurring.

OPINION

Statement of facts:--

On July 5, 1892, the appellee, Daniel Noonan, filed his complaint in the district court of Maricopa County against the appellant W. T. Gray as sheriff of said county, on the official bond of said Gray, and against the other appellants as his sureties on said bond. Two separate causes of action were set up in said complaint. In the first cause appellee here (plaintiff below) claimed damages against the appellants here (defendants below) in the sum of $ 1,395, for an alleged unlawful seizure and sale by Gray, as sheriff, under and by virtue of a certain execution issued against one J. A. Noonan, of certain personal property claimed by plaintiff, enumerated, described, and particularly set forth in said cause of action. In the second cause of action in said complaint, plaintiff claimed damages, actual and exemplary, against defendants, in the sum of sixteen hundred dollars, for the seizure and sale, under the execution referred to in the first cause of action, of property exempt from execution, because it belonged to plaintiff, and that, as plaintiff was the head of a family, said property was exempt from execution. To said complaint, on May 29, 1893, defendant Gray filed a separate answer, setting up three distinct defenses, viz.: First, a plea of res judicata; second, a plea of election and estoppel; third, a general denial. In said plea of res judicata he alleged that on the twenty-first day of February, 1891, in an action then pending in the district court of Maricopa County between plaintiff, Daniel Noonan, and the defendant W. T. Gray, a final judgment was rendered for said plaintiff against said defendant; that said suit is numbered 1,232; that it was for the same cause of action as that now pending, and was against defendant as an individual, and not as sheriff. He further alleged as a part of said plea that the judgment in said case numbered 1,232 was final, and remained in full force. As a plea of election and estoppel, he alleged that case numbered 1,232 was against him as an individual, and not as an officer; that in that case plaintiff had judgment against defendant, as an individual, for damages for seizing and converting to his own use the same identical property for which judgment is asked in this action. The other appellants filed a joint answer, in which they set up four defenses, viz.: First, a plea of res judicata; second, a plea of election and estoppel; third, a plea justifying the seizure and sale under execution of the property claimed by plaintiff (appellee), for the reason that said property was the separate property of Mrs. J. A. Noonan, and not the property of plaintiff, and that plaintiff had by his conduct estopped himself from claiming any interest therein, or in claiming that said Gray had taken said property as sheriff; fourth, a general denial. Plaintiff, after the answers were filed, dismissed all the causes of action set up in his complaint, excepting the first, and filed demurrers to the answers of defendants. The demurrers were sustained, and all the defenses set up in the answers were stricken out, excepting the general denial. The case was tried by a jury, and plaintiff offered in evidence the official bond of said Gray as sheriff of Maricopa County, on which the other defendants were sureties. Then he introduced in evidence the judgment-roll in case No. 1,232,--Daniel Noonan, Plaintiff, v. W. T. Gray, Defendant; the judgment therein being for $ 1,217.77, of date February 21, 1891, with interest at seven per cent per annum, and costs at $ 8.65. Plaintiff offered in evidence an execution on said judgment, with the return of the sheriff thereon as follows: "Office of Sheriff of Maricopa County. I hereby certify that I received the within execution on the 9th day of June, at 4:10 P. M., and hereby return the same not satisfied, having, after due search and inquiry, failed to find any property belonging to the within-named defendant in Maricopa County. Dated June 24th, 1892. J. B. MONTGOMERY, Sheriff, by A. Barry, Deputy." Plaintiff was then sworn as a witness, and testified that he had never been paid any part of the amount of the judgment in case No. 1,232. Plaintiff then introduced in evidence an execution dated July 7, 1890, for $ 191, with interest and costs, for the amount of a judgment in a case No. 1,163 in the district court of Maricopa County, in which I. N. Jacoby and others were plaintiffs, and Mrs. J. A. Noonan defendant. This was all the evidence offered by plaintiff. The complaint of plaintiff in the judgment-roll of case No. 1,232 was an action for damages against the defendant W. T. Gray for the conversion by him of apparently the identical personal property described in the complaint in this action, for the sum of $ 1,170, the alleged value thereof, and for damages for the wrongful taking of said property in the sum of six hundred dollars; and plaintiff further alleged therein that, by reason of the wrongful act of defendant, plaintiff's business had been broken up, and for that wrong he had been damaged in the further sum of five hundred dollars. For all of said damages plaintiff asked judgment for $ 1,030 for the value of the said property, and for six hundred dollars as special damages. After the close of the evidence the court instructed the jury to return a verdict for the plaintiff for the sum of $ 1,217.77, the amount of the judgment in case No. 1,232, with interest thereon at seven per cent per annum from the date of said judgment, viz.: February 21, 1891. A verdict was returned in accordance with said instruction, and judgment entered accordingly, from which defendants appeal.

ROUSE J. (after stating the facts).--This is an action by Daniel Noonan on the official bond of W. T. Gray, as sheriff of Maricopa County, against said Gray and his sureties on said bond, for damages caused by the levy of an execution, in a case against one Mrs. J. A. Noonan, on certain described personal property, alleged to be the property of plaintiff, of the alleged value, in the aggregate, of $ 1,395, and taking, carrying away, and converting said property to the use of said Gray. Plaintiff further alleged as a second cause of action that he was the head of a family, and claimed the property as exempt from execution. He further alleged that he had recovered a judgment against said Gray in case No. 1,232 for the sum of $ 1,217.77, for damages which plaintiff had sustained by the unlawful seizure and sale of the said personal property; that execution had been issued thereon, and returned, "No property found"; that defendant Gray was insolvent and worthless; and that no part of said judgment had been paid, to plaintiff's damage in the sum of fourteen hundred dollars. The plaintiff dismissed his second cause of action, and demurrers having been sustained to the defendants' answer, leaving as defenses thereto the general denial only, the trial was had on the complaint as thus amended, and defendants' general denial. The only evidence offered of the value of the property described in the complaint and the damages sustained by plaintiff was the judgment-roll of said case No. 1,232, in which case a judgment for $ 1,217.77...