Hill v. Ragland

• Decision Date: 03 December 1902
• Citation: 114 Ky. 209,70 S.W. 634
• Parties: HILL v. RAGLAND et al.
• Court: Kentucky Court of Appeals

70 S.W. 634

114 Ky. 209

HILL v. RAGLAND et al.

Court of Appeals of Kentucky.

December 3, 1902

Appeal from circuit court, Warren county.

"To be officially reported."

Action by Nellie R. Hill against S.W. Ragland and another. From a judgment for defendants, plaintiff appeals. Reversed.

John M Galloway and Geo. H. Galloway, for appellant.

W. B Gaines and Wright & McElroy, for appellees.

O'REAR J.

Appellant Mrs. Hill, sued appellee Ragland, on his official bond as sheriff of Warren county, for having wrongfully levied an order of attachment upon her stock of merchandise; the attachment not having issued against her property, but against that of her husband, P.J. Hill. The attachment was levied in July, 1893. Under familiar provisions of the Code of Practice, the attached property was consigned to the receiver of the court, and by him sold, and the proceeds brought into court to be disposed of according to the rights of the parties as finally fixed by the judgment in that case. The circuit court held that the property belonged to P.J. Hill, and denied the claim of Mrs. Hill, appellant, who had intervened by a petition and claim. Mrs. Hill prosecuted an appeal to this court. The judgment was reversed, it being the opinion of this court that it was Mrs. Hill's property. At the receiver's sale the property brought about $1,400. Some of this money was appropriated to the payment of costs in the action, and $734.62 of it was paid over to Mrs. Hill on March 10, 1897. Mrs. Hill afterwards collected from the debtors of her husband, who had sued out the attachment, $361. In this suit she claims that the value of her goods so attached and sold was $2,500. After allowing credit for the two smaller sums above named, she seeks a judgment against the sheriff for the remainder. The allegations of the petition as to the execution of defendant's bond, its covenants, and the breach thereof, are as follows: "Wherefore she says defendant Ragland, by his trespass upon and seizure and forcibly taking from her said stock of goods, etc., caused her to lose, and damaged her the value of said goods so taken by him, and upon and under an attachment against another, and thus violated and committed a breach of his bond as sheriff, then in force and of record, with his codefendant, E. P. Neale, and others, as sureties upon it; and especially as he violated and failed to perform his official duty, and wrongfully violated his said bond and its covenants and requirements, when he seized and took her said property in a proceeding and under an order of attachment against another, and not her, and in which and under which she was in no way connected. Copy of said bond is filed as part hereof, marked 'A.' She says that by said trespass and wrongful seizure of her said property said sheriff caused her to lose her said stock of goods, then worth at least twenty-five hundred dollars." It subsequently developed that the bond marked "A," and referred to in the petition, was not in fact the official bond of the sheriff, but its covenants were so general and so similar to those of the official bond that the pleader, and, it seems, the county clerk, making the copy, too, had made a mistake in using this copy as a copy of the proper bond. Therefore on the 29th of May, 1901, plaintiff filed an amended petition, setting out the above mistake, and filing a copy of the proper official bond. The allegations of the petition concerning this bond are as follows: "She says that she did not know of said mistake until May 27, 1901, or that the wrong bond had been filed by her attorney, when she had said clerk's office searched, and failed to find defendant's original general bond for and covering 1893, but found it copied in the order book then kept, and had it and the order of approval copied, which she now files as part hereof, marked 'Bond,' and in lieu of the bond heretofore filed by mistake, and bases her cause of action upon said bond now filed, and applies all her allegations as to defendant's liability and as to his bond in her petition as she intended and understood as she had originally done, and to May 27, 1901, upon said sheriff's general official bond, and not his revenue bond; and she asks to file this pleading, that justice may be done her, and prays as heretofore." It is perfectly apparent that this petition, even as amended, is fatally defective. It does not, in proper terms, set out the execution of the bond, or the fact that it had been accepted or approved by the proper authority, or its covenants. The defendants did not demur to the petition, but answered it. The answer did not deny that appellee was at the time sheriff of Warren county, and, as such, executed the attachment mentioned. On the contrary, it admitted these facts. The first paragraph of the answer was an attempt to deny that the plaintiff was the owner of the stock of goods referred to. This paragraph, however, was stricken out. The second paragraph undertook to justify the levy of the attachment by pleading that the attachment issued in the suit of B. M. Creel & Co. against P.J. Hill, and was addressed to the defendant, as sheriff, commanding him to attach the property of the said P.J. Hill; that he was instructed to levy on the property named in this suit; "that, being uncertain as to whether said property was liable to seizure under said attachment, he required the plaintiff to execute a bond of indemnity to him." Then follows the bond, with its covenants, etc. He then pleaded that the plaintiff in this case joined issue in the suit of Creel & Co. against P.J. Hill as to her ownership of the property, and that the court in that action placed the property in the hands of J. D. Hines as receiver, who, under orders of the court, took charge of the stock of goods and sold it. He also pleaded the fact of the circuit court's having adjudged the goods liable to P.J. Hill's debt, and the reversal of that judgment by this court, and the subsequent judgment in conformity with the mandate from this court that the goods belonged to appellant, Mrs. Hill. In an amended answer, which was allowed, the sheriff pleaded the five-year statute of limitation, based upon the idea that the action of the sheriff in levying upon the plaintiff's goods was simply a tort, which was barred by the statute after five years from its commission, which was the date and occasion of the levy complained of. The surety also pleaded the special seven-year statute of limitation, applicable to sureties, and was thereupon discharged. A demurrer was sustained to the sheriff's plea of the five-years statute. Upon the trial of the issues the jury returned a verdict in favor of the plaintiff for $905, after allowing the credits adverted to. Appellee entered a motion for judgment notwithstanding the verdict, which was overruled. Then he filed a motion for a new trial on various grounds, which was sustained; the ground upon which the motion was sustained being the mistake as to the bond sued on, above referred to. Upon another trial upon the same issue (that is, the value of the stock of goods at the time of the levy, and appellee's liability therefor upon his official bond as sheriff), the jury, allowing the credits admitted, returned a verdict in favor of the plaintiff for $1,000. Appellee moved before the submission to the jury for a peremptory instruction, without disclosing the grounds therefor, which motion was overruled. He again moved the court for a judgment notwithstanding the verdict, and also filed a motion and grounds for new trial. The court sustained the motion to render a judgment for the defendant notwithstanding the verdict of the jury, and dismissed appellant's petition. From this action of the court she has appealed. The questions thereby presented for decision are (1) the cause of action sued on; (2) the statutory period of limitation applicable to same; and (3) the availability of the motion for judgment non obstante veredicto.

1. From a very casual inspection of the petition and exhibits, it is evident that plaintiff was attempting to assert a cause of action against appellee for his official misconduct in levying upon her goods under process against another alone, and was seeking a recovery therefor upon his official bond executed by him as sheriff. Otherwise the references to the bond, and the breach of its covenants, and the filing of the copy, as well as joining one of the sureties as a defendant, would be meaningless. That the official bond of the sheriff covers his tortious act in levying a writ upon the property of a stranger to the suit, and entitles the owner to recover his damages against the official's bondsmen, is no longer an open question. Forsythe v. Ellis, 4 J. J. Marsh, 298, 20 Am. Dec. 218; Com. v. Stockton, 5 T. B. Mon. 192; Jewell v. Mills, 3 Bush, 64. In that state of case the action is upon the bond; the breach being the wrongful seizure of the stranger's goods under process, which made the act an official one, instead of a personal trespass. The act of making the wrongful seizure was a breach of the covenant of the bond "to well and faithfully perform the duties of his office," and gave a right of action that instant against the sheriff and his sureties.

2. Under section 2551, Ky. St., the sureties were released after seven years. That fact is not disputed now in this case. But as against the sheriff, section 2514, Ky. St. applies allowing 15 years within which to commence the action "upon the official bond of the sheriff." We consequently construe that the five-year statute (section 2515, Ky. St.), applicable ordinarily to torts, does not apply to this case. ...