Kukowski v. Emerson-Brantingham Implement Co.

• Decision Date: 08 October 1919
• Parties: KUKOWSKI v. EMERSON-BRANTINGHAM IMPLEMENT CO. et al.
• Court: North Dakota Supreme Court

43 N.D. 333

175 N.W. 706

KUKOWSKI

v.EMERSON-BRANTINGHAM IMPLEMENT CO. et al.

Supreme Court of North Dakota.

Oct. 8, 1919.

Syllabus by the Court.

A debtor whose property was attached at the suit of the creditor, after paying the judgment brought suit against the attaching creditor, the sheriff, and the surety on the latter's official bond to recover damages occasioned by the failure to safely keep the property attached. The defendant sheriff failed to turn over the property attached to his successor, who learned of the attachment through agents of the attaching creditor. Some of the damage occurred before the expiration of the term of office of the defendant, but the major part of it occurred during the term of his successor, and after the latter had notice of the attachment. Judgment was rendered on a special verdict. It is held:

There being no finding and no evidence that the attaching creditor directed the sheriff as to the storage and care of the attached property, it is not liable for the breach of duty on the part of the sheriff in failing to safely keep the property and to turn the same over to his successor.

It is the statutory duty of a retiring officer, under section 682, Compiled Laws of 1913, to deliver to his successor all property appertaining to his office; and, where this duty is not performed and there is no direct evidence of assumption of possession by his successor, the outgoing officer remains liable to the owner for the care of the property.

Knowledge on the part of a sheriff that his predecessor had previously taken property under a warrant of attachment does not impose upon the former the duty to make a search for the warrant of attachment, nor to assume possession of the attached property.

Where the findings in a special verdict are consistent only with negligence and with the breach of statutory duty on the part of an officer, they imply negligence, and it is not necessary that there shall be an affirmative finding to that effect.

The liability of a surety on an official bond is ordinarily the same as the liability of the officer, and where the condition of the bond is that the officer will pay over and deliver the property according to law, the measure of damages for the breach of the condition is the difference between the full value of that which would have been delivered had the officer complied therewith and that which he is able in fact to deliver.

Appeal from District Court, Golden Valley County; Crawford, Judge.

Action by Leo Kukowski against the Emerson-Brantingham Implement Company, John Madison and Northwestern Trust Company. Judgment for plaintiff against all defendants, and each defendant takes a separate appeal. Reversed as to defendant Emerson-Brantingham Implement Company, and affirmed as to defendants John Madison and Northwestern Trust Company.Lawrence & Murphy, of Fargo, for appellant Emerson-Brantingham Co.

Bangs, Hamilton & Bangs and W. J. Mayer, all of Grand Forks, for appellants Madison and Northwestern Trust Co.

R. F. Gallagher, of Beach, for appellant Madison.

Keohane & Jones, of Beach, and Pugh & Thress, of Dickinson, for respondent.

BIRDZELL, J.

This is an action to recover damages sustained by the plaintiff through the dismantling of a gas tractor and the loss of its various parts, alleged to have been occasioned by the lack of care of the engine on the part of the sheriff who had seized it under a warrant of attachment. The action is against the sheriff who seized it, the attaching creditor and the surety upon the official bond of the former. From a judgment in favor of the plaintiff against all the defendants for $3,253.32, each of the defendants has perfected a separate appeal. The facts necessary to an understanding of the questions presented on the various appeals are as follows:

In January, 1914, the defendant Madison was sheriff of Golden Valley county, N. D., and the defendant Northwestern Trust Company was surety on his official bond. On the 6th of January, 1914, the defendant Emerson-Brantingham Implement Company commenced an action against this plaintiff, Leo Kukowski, to recover the purchase price of a gasoline tractor. A warrant of attachment was issued in the action, under which Madison took possession of the tractor. He took it to Beach, and stored it in a yard in the rear of a machine shop with the consent of the proprietor, one Kastien. Other engines were also stored there while awaiting or undergoing repairs. Madison's term of office expired in January, 1915, and he was succeeded by S. A. Smith. In the spring of 1915 agents of the attaching creditor discovered that the tractor was being damaged through the disappearance of some of its parts, and they notified Sheriff Smith of that fact and of the further fact that the tractor was held under a warrant of attachment, at the same time requesting Smith to take care of it. The suit in which the engine was attached was terminated by the rendition of a judgment in favor of the plaintiff which was satisfied by Kukowski, the judgment debtor, on October 13, 1916. Upon paying the judgment, Kukowski became entitled to a return of the attached property, and he brings this action for the damages occasioned by the failure to protect the property while in the possession of the sheriff under the warrant.

Upon the trial, the jury returned a special verdict, upon which the judgment appealed from was entered. The material findings of the jury are as follows: (1) That the fair market value of the engine at the time it was taken under the warrant of attachment was $3,000. (2) That the fair market value of the engine at the date when the term of office of the defendant Madison expired (January 4, 1915) was $2,800. (3) That the fair market value of the engine in the spring of 1915 when Sheriff Smith had the first conversation with an agent of the attaching creditor was $2,800. (4) That the fair market value of the engine on October 13, 1916, was $100. (5) That the value of the parts which had been removed before the expiration of the defendant Madison's term of office (excluding freight and labor) was $170. (6) That the defendant Madison did not notify his successor in office that the tractor was held under a warrant of attachment, and that he did not turn over any records showing this fact. (7) That the agents of the attaching creditor notified Madison's successor, Smith, of the attachment in the spring of 1915, and requested that the property be cared for by him. (8) That Sheriff Smith, in the fore part of 1915, inquired of Kastien as to what had become of the parts previously taken from the tractor. (9) That the attachment proceedings were never set aside, and that the judgment in that case had become final. The jury also finds that during the conversation between Smith and Kastien, the time of which is not specified, Smith stated, in substance, that if he caught any one taking parts from the tractor he would make them suffer for it.

[1] The appeal of the defendant Emerson-Brantingham Implement Company involves only a narrow question of law, and will be first considered. The contention of the appellant is that, where an attachment creditor lawfully sues out a writ of attachment and obtains a judgment in the action, there being no proceedings to test the validity of the attachment, the judgment creditor is not liable for any breach of official duty on the part of the sheriff in failing to keep the property held under the warrant. Section 7542, Compiled Laws of 1913, which specifies the requisites of a warrant of attachment, states that the warrant must require the sheriff to attach and safely keep property of the defendant sufficient to satisfy the plaintiff's demand, unless the defendant delivers to him an undertaking in favor of the plaintiff, conditioned to pay any judgment which the plaintiff may obtain in the action, or an undertaking that the property about to be attached shall be forthcoming. The statute clearly makes it the official duty of the sheriff to attach and safely keep the property which the warrant authorizes him to seize. For a breach of such duty, the sheriff is liable to the party in whose favor the duty exists. Where the attaching creditor would sustain a loss due to the negligent keeping of the property by the...