Murray v. Mace

• Decision Date: 06 June 1894
• Docket Number: 5339
• Parties: THOMAS MURRAY v. MAGGIE MACE
• Court: Nebraska Supreme Court

59 N.W. 387

41 Neb. 60

THOMAS MURRAY v. MAGGIE MACE

No. 5339

Supreme Court of Nebraska

June 6, 1894

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

Slabaugh Lane & Rush and Lake, Hamilton & Maxwell, for plaintiff in error.

John L Carr and Frank A. Parker, contra.

OPINION

POST, J.

This is a petition in error from a judgment of the district court of Douglas county. The defendant in error, who was plaintiff below, filed in the district court the following petition:

"MAGGIE MACE, PLAINTIFF, V. THOMAS MURRAY, DEFENDANT. Petition.

"The plaintiff complains of the defendant for that on the 24th day of December, 1889, and at divers other days and times before the commencement of this suit, the defendant unlawfully and with force broke and entered a certain dwelling house of the plaintiff, situated on lot 2, block 145, in the city of Omaha, in Douglas county, Nebraska, and then and there made a great noise and disturbance therein, and staid and continued to make such noise and disturbance for two hours then next following, and then and there took and carried from said house all of the defendant's furniture and household utensils, consisting of four spring bedsteads, four mattresses, three commodes, three bedroom tables, three stoves, one lounge, ten chairs, three trunks, a large quantity of bedding, dishes, and other things, and forcibly and wantonly threw said furniture down a steep embankment into the public street and broke and injured said property to the value of $ 75. By means of which said several premises said plaintiff was, during all the time aforesaid, greatly disturbed, the property of the plaintiff of the value of $ 75 was destroyed, and the plaintiff was prevented from carrying on and transacting her lawful and necessary affairs and business, and the plaintiff became sick, ill, and disordered, and so continued for the space of one week, and the plaintiff suffered great humiliation, anguish, and distress of mind, and has continued to do so up to the present time, to her damage in the sum of $ 5,000.

"2. The plaintiff complains of the defendant for that on the 24th of December, 1889, the defendant unlawfully and with force broke and entered a certain dwelling house of the plaintiff situated on lot 2, block 145, in the city of Omaha, Douglas county Nebraska, and then and there ejected and expelled the plaintiff and her family from the possession, use, and occupation, and has kept them so ejected until the present time, whereby the plaintiff, during all said time, was deprived of the benefit of said dwelling house, to her damage in the sum of $ 50.

"3. The plaintiff complains of the defendant for that on or about the 24th day of December, 1889, the said defendant seized and forcibly took and carried away the following described goods, chattels, and effects, the property of the plaintiff, to-wit, one white bed spread, four white sheets, one carpet, one bureau, one red carpet, one old axe, of the value of $ 25, and has converted the same to his own use, and kept plaintiff from the possession of said property until the present time, to the damage of the plaintiff in the sum of $ 25.

"The plaintiff therefore prays judgment against the defendant for the sum of $ 5,150 and costs of suit.

"MAGGIE MACE,

"Plaintiff."

The answer was a general denial.

The facts disclosed by the evidence are as follows: In the month of June, 1889, Mrs. Mace, the plaintiff below, leased and entered into possession of a house owned by Murray, the defendant below. On the 29th day of November following Murray recovered judgment in a proceeding for the forcible detention of said property before a justice of the peace for Douglas county, and an order for a writ of restitution. On the 2d and 10th days of December writs of restitution were issued, which were both returned without having been served. On the 24th day of December a third writ was issued and placed in the hands of one Small, a constable, for service. On the day last named said Small, armed with the writ of restitution, visited the premises in question for the purpose of placing Murray in possession, but Mrs. Mace locked the door and refused him permission to enter. About one hour later Murray and the constable visited the premises in the absence of Mrs. Mace, and entering the house through a back door proceeded to remove the property found therein, and which acts are the wrongs alleged in the foregoing petition.

It is argued, first, that Murray incurred no liability for his acts in the execution of the writ, for the reason that he was merely called upon to assist the officer, and that whatever was done by him in the premises was under the direction and in obedience to the command of the latter. The rule we regard as settled, that one who places in the hands of an officer a valid writ, without directions as to the manner of its service, will not be liable for torts committed by the latter while engaged in the execution thereof; but where he, with knowledge of the facts, advises an abuse of the process on the court, such as a trespass against the person or property of another, he will be regarded as a wrong-doer from the beginning. (Taylor v. Ryan, 15 Neb. 573, 19 N.W. 475; Hyde v. Cooper, 26 Vt. 552; Cooley, Torts, 129.) In this instance Murray was not satisfied apparently to trust the officer, but voluntarily assisted in the removal of the property, and now justifies their joint action on the ground that it was necessary and proper in the execution of the writ. He is, therefore, clearly within the rule above stated, provided there was an abuse of the process, a question which will now be considered.

The evidence of the plaintiff below tends to prove that Murray and the constable tore the carpets from the floor and stairs without removing the tacks, and that the window shades were torn down without removing the fixtures. It is shown, also, that there were two or three dishes broken, and that a few knives and forks, a breast pin, and four sheets were lost. It may also be inferred from the plaintiff's evidence that the property, when removed from the house,...