Jones v. the People
| Citation | 19 Ill.App. 300,19 Bradw. 300 |
| Parties | JOHN JONES ET AL.v.THE PEOPLE, ETC. |
| Decision Date | 30 November 1885 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Green county; the Hon. G. W. HERDMAN, judge, presiding. Opinion filed February 25, 1886.
Mr. JAMES R. WARD, for appellants; that plaintiff, by her election, has waived all other remedies, cited Karr v. Barstow, 24 Ill. 581; Kreuchi v. Dehler, 50 Ill. 177; Harrison v. Singleton, 2 Scam. 22; Derickson v. Krause, 4 Bradwell, 507; Merricks v. Davis, 65 Ill. 319.
As to measure of damages: Sutherland on Damages, Vol. I, 117, Vol. II, 32; Lawrence v. Hagerman, 56 Ill. 76; Daviss v. Crow, 7 Blackf. 129; Bates v. Courtwright, 36 Ill. 518.
Plaintiff had no right of action upon the sheriff's bond: State v. Conover, 4 Dutcher, 224; South v. Maryland, 18 How. (U. S.) 396; State v. Long, 8 Iredell, 415; State v. Brown, 11 Iredell, 141; Gerber v. Ackely, 32 Wis. 233; McElhaney v. Gilleland, 30 Ala. 183; Brown v. Mosely, 11 S. & M. 354; Jenkins v. Lomonds, 29 Ind. 294; Carey v. States, 34 Ind. 105.
Mr. MARK MEYERSTEIN, for appellees; that plaintiff had a remedy on the sheriff's official bond, cited Horan v. People, 10 Bradwell, 21; People v. Robinson, 89 Ill. 159; Walsh v. People, 6 Bradwell, 204; 2 Sutherland on Damages, 31.
As to damages: Sutherland on Damages, Vol. I, 106, 142; Vol. II, 61.
This was an action of debt on the official bond of a sheriff. The breach complained of was that the sheriff, having a writ of attachment at the suit of Geiseke, Mysenburg & Co., against the property of one James W. Israel, levied upon the property of Elizabeth Israel, for whose use this suit is brought.
A trial by jury resulted in a verdict for the plaintiff, the damages being assessed at $622.05.
A motion for a new trial was overruled, and judgment was entered upon the verdict.
It is objected, first, that the cause of action here set up can not be maintained upon the official bond of the sheriff and his sureties. There is some conflict of authority on the question, but we are inclined to think the weight of authority, as well as sound reason, will support the view that the levy by a sheriff upon the property of B, by virtue of a writ against A, is a breach of his bond. Walsh v. The People, etc., 6 Bradwell, 204; Horan v. The People, etc., 10 Bradwell, 21.
The record shows that after the levy had been made, notice was given the sheriff by said Elizabeth Israel that she claimed the property, and the sheriff thereupon notified the county judge, and the necessary steps having all been taken, there was a trial of the right of property in which the jury found for the claimant, from which an appeal was taken by the attachment creditors to the circuit court, where the case was again tried, resulting the same way, and an appeal was then taken to this court, when the judgment of the circuit court was affirmed.
Pending these trials the property remained in the custody of the sheriff, and until the affirmance in this court, when it was restored to the claimant.
On the trial of the present case the record of the proceedings in the trial of the right of property was introduced in evidence against the objection of the defendant, and the court instructed the jury that the judgment therein was conclusive of the right of the plaintiff in this case. This was error. The sheriff was not a party in a legal sense to that proceeding, and while he would have been protected in selling the property by a decision adverse to the claimant, yet he is not bound by a decision the other way. This point was so ruled expressly in Whitaker v. Wheeler, 44 Ill. 440, where the judgment was reversed for the error of the circuit court in admitting the record of such a proceeding in evidence, in an action of trover against the sheriff. See, also, Foltz v. Stevens, 54 Ill. 180; and Hubbard v. Thrasher, 65 Ill. 479, where it was said that notwithstanding the verdict for claimant the officer may, at his peril, retain and sell the property if he chooses to do so.
These decisions were under a former statute where the trial was before the sheriff and a jury, but we think the change in the law whereby the trial is to be had before the county judge and a jury has not changed the rule stated.
The plaintiff was permitted in this case to prove, and the jury were instructed that they should allow to the plaintiff as damages, the expenses incurred by her in the trial of the right of property, including attorney's fees, traveling and hotel expenses, and all costs, including the expense of printing briefs, etc., in the appellate court.
It is a general rule that the true measure of damages is compensation for the direct injury sustained, remote and consequential damages not being allowed.
In an action on a contract the successful party recovers only such costs as are taxable under the statute. He can not usually have an allowance for his loss of time and expense in prosecuting the demand or...
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