Murry v. Belmore

• Decision Date: 12 January 1916
• Docket Number: No. 1801.,1801.
• Court: New Mexico Supreme Court
• Parties: MURRYv.BELMORE ET AL.

21 N.M. 313

154 P. 705

MURRY

v.BELMORE ET AL.

No. 1801.

Supreme Court of New Mexico.

Jan. 12, 1916.

Syllabus by the Court.

Where an officer levies a writ of attachment on the property of a stranger, attachment plaintiff is liable to the claimant of the ownership and right of possession thereof, not only when he directs the wrongful levy, but also when he subsequently adopts or ratifies the officer's acts, independently of any bond and jointly with the attaching officer.

A question, not jurisdictional, cannot be raised for the first time on appeal.

After a verdict has been received and entered upon the minutes, and the jury has been dismissed, they have not the power to reassemble and alter their verdict.

Where, from the record, it appears that attorney for appellant purposely and designedly permitted the court to reassemble the jury and correct the verdict, without objecting to such action, and thereafter sought to take advantage of the same, the appellate court will not consider such alleged error.

Appeal from District Court, Quay County; T. D. Leib, Judge.

Action by G. L. Murry, guardian of Whitney B. Reid and others, against D. A. Belmore, Jr., and another. From judgment for plaintiff, defendant named appeals. Affirmed.

Error could not be predicated on the court's action in permitting the jury to reassemble to correct the verdict, where the complaining party's attorney had purposely and without objection permitted the reassembling of the jury and correction of the verdict.

Catron & Catron, of Santa Fé, and H. L. Boon, of Tucumcari, for appellant.

Harry H. McElroy, of Tucumcari, for appellees.

ROBERTS, C. J.

This action was instituted in the court below by G. L. Murry, as guardian of the minor heirs of Nellie B. Reid, deceased, against the appellant, Belmore, and one J. W. Dickey, not a party to this appeal, to recover damages for the wrongful removal of certain fixtures and improvements from a tract of land which said heirs inherited from their mother. The real estate in question had been purchased by Mrs. Reid from one Hamm, about one year prior to the alleged trespass. Hamm was indebted to the appellant, Belmore, who instituted suit against him, and caused an attachment to be levied upon the dwelling house, barn, fences, and certain other improvements upon the land in question, which were later sold by virtue of such attachment proceedings. At the sale appellant purchased all the attached property, excepting the windmill and fixtures connected therewith, which were purchased by his codefendant, Dickey. Belmore was notified by Murry (whether before or after the sale under the attachment proceedings does not definitely appear) prior to the removal of any of the said property that the real estate belonged to said minor heirs; that Mrs. Reid had purchased the same prior to the institution of the attachment proceedings, and had a deed therefor, which had been long since of record. Notwithstanding the notice so given, Belmore sold a part of the property so purchased by him to others and authorized the purchasers to remove the same from the premises, and removed other property himself. Dickey removed the windmill. Upon the trial of the case, appellant did not dispute the fact that title to the property was vested in the appellee's wards at the time the attachment proceedings were instituted, and only attempted to litigate the value of the property and the amount thereof that he had removed. The jury returned a verdict against both defendants, in favor of plaintiff, in the sum of $375, we may assume, although the original verdict is not made a part of the record. The court received the verdict and discharged the jury. On the morning of the next day, the court called the jury into the box and stated that he had been advised by practically all the members of the jury that they did not intend to return a verdict against Dickey for any amount, but only intended to award a recovery against Belmore. The court thereupon asked each juror if such was his intention. Upon being advised in the affirmative, he stated that the verdict would be corrected by limiting the recovery against Belmore alone, which was done, and judgment entered accordingly.

While appellant has assigned many alleged errors, only two of the assignments are discussed, and those only will be considered.

[1] The first error relied upon is that the court erred in refusing to set aside the verdict of the jury for the reason that the verdict was excessive and not warranted by the evidence. Under this assignment appellant urges two propositions: First, that Belmore removed only a part of the property and caused only part of the damage, to wit, $40.50; and, second, that the Reid heirs owned only a three-fourths interest in the property removed from the premises, and are therefore entitled only to that proportionate part of the damages.

As to the first proposition, it is only necessary to say that appellant set in motion the agency which resulted in the damages accruing to appellee. He instituted the attachment proceedings and accepted the benefits from the sale of the property. The guardian had the election “to pursue jointly or severally against all who aided in, or who advised or procured, or accepted benefits resulting from, the trespass.” Vandiver v. Pollak, 107 Ala. 547, 19 South. 180, 54 Am. St. Rep. 118. Here Belmore procured the attachment and caused the property to be sold and derived all the benefits from the sale, and was thereby rendered liable to respond in damages for the conversion of all the property sold, whether purchased by himself or others, and this regardless of the fact that appellee might, had he so elected, have proceeded against all others who participated in the wrongful...