Miller v. Roby

• Decision Date: 08 January 1880
• Citation: 4 N.W. 65,9 Neb. 471
• Parties: JAMES P. MILLER, AND OTHERS, PLAINTIFFS IN ERROR, v. MARY E. ROBY, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 471

4 N.W. 65

JAMES P. MILLER, AND OTHERS, PLAINTIFFS IN ERROR,

v.MARY E. ROBY, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed January 8, 1880.

Error from the district court for York county.

France & Sedgwick, for plaintiffs in error.

Edward Bates, for defendant in error.

MAXWELL, C. J.

The defendant in error brought an action against the plaintiffs in error, in the district court of York county, to recover the sum of $300, for the conversion of certainproperty owned by her. The cause was submitted to the court without the intervention of a jury, and judgment was rendered against the plaintiffs in error for the sum of $52.58 and costs, taxed at the sum of $111.98; costs of a former term, amounting to $42.66, being taxed to the defendant in error. A motion to retax costs having been overruled, the plaintiffs bring the cause into this court by petition in error.

It appears from the record that Miller was sheriff of York county, and took the goods in question under an order of attachment in an action wherein J. E. Porter & Son were plaintiffs and Samuel Roby defendant, and that judgment was rendered therein against Roby for the sum of $38.60, and that the property so levied upon was applied in payment of said judgment.

There is no allegation in the petition that the officer acted in bad faith in making the levy, or that he had reason to believe that the goods belonged to Mary E. Roby; the allegation of the petition being: “And said plaintiff avers that then and there the said property being found and converted and disposed of the same to their, the defendants', own use and benefit, to the damage of said plaintiff in the sum of three hundred dollars.” The action is, therefore, not for misconduct in office, but for the value of the property taken. Misconduct in office may be defined as unlawful behavior or neglect by a public officer by which the rights of the parties have been affected. Thus, a sheriff or constable is liable to a plaintiff for refusal or neglect to serve process, or want of diligence in service; for the escape of a defendant who was lawfully arrested on civil process, either mesne or final; for neglect or refusal to return process; for making a false return; for negligently caring for goods whereby some of them are lost; for neglect to pay over moneys collected, and the like. Cooley on Torts, 398.

A justice of the peace has jurisdiction in cases where the officer has failed to make return, made a false...