Nasser v. Gaston

• Court: Washington Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Nasser v. Gaston, 70 Wash. 685, 127 P. 470 (Wash. 1912)
• Decision Date: 02 November 1912
• Parties: NASSER v. GASTON, Sheriff.

127 P. 470

70 Wash. 685

NASSER v. GASTON, Sheriff.

Supreme Court of Washington

November 2, 1912

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by H. Nasser against George Gaston, as sheriff of Thurston county. From a judgment for plaintiff, defendant appeals. Affirmed.

E. N. Steele and Troy & Sturdevant, all of Olympia, for appellant.

Fletcher & Evans, of Tacoma, for respondent.

PER CURIAM.

This is an action for damages for the conversion of personal property. There was a verdict and judgment for the plaintiff. The defendant has appealed.

The facts in brief are these: The appellant, Gaston, as sheriff of Thurston county, in a claim and delivery suit between third parties, took possession of certain personal property which the respondent claimed to own. The appellant took the property into his possession on the 9th day of August, 1911. On the day following the respondent in writing notified him that he owned the property, and demanded its return. On the next day he served upon him his written affidavit, setting forth his title to the property and his right to possession thereof, and again demanded its return. On the next day he notified him in writing that he elected to treat the taking and detention of the property as a conversion. On the same day the plaintiff in the claim and delivery action gave the appellant an indemnifying bond.

The first and principal question is this: Is the suit maintainable against an officer seizing and holding property under the claim and delivery statute in an action in which the claimant had not been made a party when his action was commenced? The appellant strenuously contends that the action is not maintainable, and has cited authorities which hold that at common law replevin did not lie against an officer who was holding property under a writ of replevin.

The ground for the rule was that the property was in the custody of the law, and that the possession of the officer could not be disturbed. This was the common-law rule. But the question must be determined by reference to the statute. In Scott v. McGraw, 3 Wash. 675, 29 P. 260, in a claim and delivery suit against a sheriff who was holding the property under a writ of execution against a third party, the court said that the common-law action of replevin had been abrogated and the statutory action of claim and delivery substituted in its place; that the statute (2 Hill's Code, § 256) provided that, when a delivery is claimed, an affidavit shall be made by the plaintiff, or some one in his behalf, showing, among other things, that the property 'has not been taken for a tax, assessment or fine pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, or if so seized, that it is by law exempt from such seizure.' The court said further: 'This language plainly implies that in all cases where the property has not been seized under an execution or attachment against the property of the plaintiff himself he may recover its possession from an officer who may have seized it. Any other construction would render that portion of the affidavit meaningless.' Rem. & Bal. Code § 708, is identical with 2 Hill's Code, § 256. Whilst the court was considering a case where the sheriff had justified under a writ of execution, the construction announced is clearly right in all cases where the plaintiff is not a party to the suit in which the property was seized. The action is a statutory one, and the provisions of the statute may be invoked by complying with its requirements.

An examination of the claim and delivery statute as a whole (Rem. & Bal. Code, §§ 707-716, inclusive) makes it clear that the action is maintainable. Section 709 provides that upon receipt of the affidavit in conformity with the provisions of section 708 and a bond to the defendant the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. Section 711 provides that at any time before the delivery of the property to the plaintiff the defendant may, if he has not excepted to the sureties on the plaintiff's bond as provided in section 710, require the return of the property, upon giving to the sheriff a bond conditioned for a delivery of the property to the plaintiff if such delivery be adjudged, and for payment to the plaintiff of such sum as may be recovered against the defendant. Section 716 provides: 'If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto or his right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff before the delivery of the property to the plaintiff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the sheriff against such claim by a bond, executed by two sufficient sureties, * * * and no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.' It will be observed that the rights of both the plaintiff and the defendant in the claim and delivery suit are sedulously guarded by the statute, and that ample provision is made, not only for their indemnity, but for the indemnity of the sheriff as well, and that the statute makes no provision for security for a third party claiming ownership. It is significant, also, that the section last quoted provides that the claim of a third person can only be made by an affidavit stating the grounds of the claimant's title or right to possession. If, as the appellant asserts, intervention in the original action is the only remedy of a third party who claims the property, why does the statute provide that the sheriff upon being served with the affidavit shall not be bound to keep the property or deliver it to the plaintiff, unless the latter upon demand shall give him an indemnifying bond 'against such claim?' It is apparent, we think, that the statute contemplates that the party serving the affidavit may, if he wishes, bring any appropriate action against the officer if his demand for a return of the property is not complied with. This construction is supported by Davis v. Gambert, 57 Iowa, 239, 10 N.W. 658. In Welter v. Jacobson, 7 N. D. 32, 73 N.W. 65, 66 Am. St. Rep. 632, it was held that trover will lie in such cases. In McDowell v. McCormick (C. C.) 90 F. 393, the court held that an action of trespass lies against an officer by a third party who was in possession of the property at the time it was taken in the replevin action. The case of Mack v. Doak, 50 Wash. 119, 96 P. 825, cited by the appellant, has no application to the case. There the owners of certain personal property had given a chattel mortgage upon it which had been foreclosed under the notice and sales statute, and the property had been sold to the mortgagee. It was held that the sheriff and his bondsmen were not liable in a suit for conversion.

The parties, by their counsel, stipulated that the depositions of two witnesses might be taken 'on interrogatories submitted by the defendant and by cross-interrogatories submitted by plaintiff, * * * reserving, however, to both plaintiff and defendant the right to object to any and all questions and answers thereto, either of defendant or plaintiff, by reason of competency, relevancy, materiality, or admissibility thereof, at the time said depositions are used at the trial of said cause,...