Price v. Pace
| Decision Date | 12 February 1931 |
| Docket Number | 5465 |
| Court | Idaho Supreme Court |
| Parties | J. H. PRICE, Appellant, v. PRESLEY D. PACE, as Sheriff of Cassia County, Idaho, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Respondents |
SHERIFFS-CARE OF PROPERTY IN CUSTODY-NEGLIGENCE OF DEPUTY-LIABILITY OF SHERIFF AND SURETY.
1. Generally, sheriff must exercise ordinary reasonable care and diligence in keeping property coming into his possession under process or levy.
2. Where officer, as sheriff, negligently loses possession of property in his custody, owner has right of action against him.
3. Sheriff is liable for deputy's negligence in official capacity for which sheriff would be liable if committed by him.
4. Sheriff's surety is liable for acts of deputy done by virtue of office.
5. Keeper or custodian, appointed by deputy sheriff to guard wheat seized in claim and delivery action, is sheriff's agent, and his negligence is imputable to sheriff (C. S sec. 6765).
6. Sheriff held negligent, justifying recovery against him and his surety, where deputy allowed seized wheat to remain on premises of defendant in claim and delivery action unprotected, uninclosed, and practically unguarded (C. S sec. 6765).
7. Facts being undisputed, and indicating only one reasonable conclusion, question of sheriff's negligence in keeping wheat seized in claim and delivery action became question of law for court (C. S., sec. 6765).
8. That owner of wheat, seized in claim and delivery action, failed promptly to demand possession from sheriff, did not release sheriff from liability for subsequent negligent loss (C. S sec. 6765).
9. Sheriff may hold property taken in claim and delivery until fees are paid (C. S., sec. 6765).
10. Statutory affidavit, order, and undertaking in claim and delivery constitute "process" under which sheriff takes property, making sheriff liable for subsequent negligent loss (C. S., secs. 3595, 6757-6759, 6765).
APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. W. A. Babcock, Judge.
Action against sheriff and the surety on his official bond. Judgment for defendants. Plaintiff appeals. Reversed and remanded, with instructions.
Cause reversed with directions. Costs to appellant.
S. T. Lowe, for Appellant.
The sheriff is responsible for the safekeeping of the property taken under process. (City Bank of Leadville v. Tucker, 7 Colo. 220, 3 P. 217; Wood v. Lowden, 117 Cal. 232, 49 P. 132; Stevenson Bros. Co. v. Robertson, 21 Cal.App. 224, 131 P. 326; Aigeltinger v. Whelan, 133 Cal. 110, 65 P. 125; Moore v. Rogers, 102 Cal.App. 783, 283 P. 840, 284 P. 916; 24 R. C. L., p. 938, sec. 31; 35 Cyc. 1668.)
The negligence of the sheriff in the case was not a question for the jury, because the act of the sheriff in leaving the wheat on the premises of the defendant Russell exposed, uninclosed and unguarded, is negligence as a matter of law.
A sheriff who has property in his official custody is liable for the loss or injury to the same, resulting from the default or negligence of the keeper or custodian whom he has placed in charge of the property. (35 Cyc. 1669; Bailey v. Security Trust Co., 34 Cal.App. 348, 167 P. 409.)
T. M. Morris, for Respondents.
A sheriff is only required to use ordinary diligence and care with respect to property seized by him and held in his custody; and he is liable only for a loss which has resulted from a failure on his part to use that degree of care. (35 Cyc. 1670; 6 C. J. 312, sec. 595; 24 R. C. L., p. 938, sec. 31, p. 939, sec. 32; O'Bryan Bros. v. Webb, 142 Ala. 259, 37 So. 935; Standard Wine Co. v. Chipman, 135 Mich. 273, 106 Am. St. 394, 97 N.W. 679; Moore v. Westervelt, 21 N.Y. 103; Cresswell v. Burt, 61 Iowa 590, 16 N.W. 730; Norris v. McCanna, 29 F. 757.)
What constitutes ordinary care and diligence is a question of fact for the jury. (Eberhart v. Murphy, 113 Wash. 449, 194 P. 415; Reighl v. Converth, 117 Kan. 461, 232 P. 251.)
On September 13, 1925, appellant commenced an action in claim and delivery in the district court for Cassia county against one E. R. Russell for possession of a partly threshed crop of wheat grown during the year 1925 upon certain lands in said county. At the same time appellant delivered to the sheriff a proper affidavit and undertaking in said action, together with an order indorsed on said affidavit by attorney for appellant requiring the sheriff to take the property from defendant. (C. S., secs. 6757, 6758, 6759.) Thereafter, the sheriff made the following return, to wit:
and at the same time I delivered to the defendant, E. R. Russell, a copy of the within affidavit and order, and undertaking duly approved by me, and the defendant having failed to except to the surety therein, and also having omitted to require a return of said property, and no other person than the defendant having made claim thereto, I did at the expiration of the time prescribed by the statute for seeking such delivery and making such claim, to-wit: on the 25th day of September, 1925, deliver 116 sacks of wheat and one stack of wheat, not threshed, to the plaintiff, but was unable to deliver the entire amount, as by said order I am commanded, owing to the fact that three hundred sacks of said wheat were taken from the custody of the sheriff's keeper.
Judgment was entered April 9, 1927, in favor of appellant for the possession of all the wheat mentioned in said return.
This action was brought by plaintiff in the claim and delivery action against the sheriff and the surety on his official bond to recover the value of the 300 sacks of wheat not delivered. The cause was tried to a jury and resulted in a verdict and judgment for defendants from which plaintiff appeals.
The facts concerning the sheriff's taking and his possession of the property mentioned in his return are undisputed and are substantially as follows: Price, plaintiff in the claim and delivery action, in the forenoon of September 15, 1925, accompanied Deputy Sheriff Mahoney to the farm known as the Kelly place, resided upon and farmed by Russell, the defendant in said action, as a tenant. After serving copies of the affidavit, etc., in claim and delivery, upon defendant Russell, the deputy sheriff proceeded three-quarters of a mile southwesterly to the Gray place, where one W. H. Gibson, aged seventy years, was at work in the field. Of his own initiative and without written instructions from Price, the deputy appointed Gibson "keeper" of the wheat, including the 300 sacks now in controversy, at that time piled up in a 160-acre field on the Kelly place, not more than 300 yards from the house occupied by Russell. The large field was inclosed by a fence, but there was no shelter for, nor inclosure around, the grain itself. Gibson, the keeper, resided on a farm one mile south and one mile west from the Kelly place. He returned home to sleep each night after working all day at the Gray place. The wheat was visible from his residence but not from the Gray place. Gibson did not see the grain until the day after he was appointed keeper and never, at any time, went right to the grain or counted the sacks. He testified that he passed near it nearly every day. Neither the sheriff nor his deputy went again to the place where the grain was piled until September 25, 1925, when the grain other than the missing 300 sacks was delivered to appellant. Kelly, the owner of the farm, admitted taking a portion of the 300 sacks--he is not certain of the number--claiming a right to one-third of the entire crop. He does not remember the date he removed it. Gibson swears that the balance of the 300 sacks was removed in the night-time. The evidence is conflicting and uncertain as to the date, or dates, on which any of the wheat was removed from the Kelly place. It is undisputed that on the evening of September 24th, the sheriff, or his deputy, conversed with Price who was told he could have the grain since no claim had been set up by a third party (C. S., sec. 6766), no redelivery bond had been furnished by Russell (C. S., sec. 6761), and no exception taken to the sureties on the undertaking in claim and delivery (C. S., sec. 6760); that on the next day, September 25th, delivery of the property remaining in the hands of the sheriff was made to appellant.
C. S sec. 6765, requires the sheriff who has taken property in claim and delivery to "keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his fees for taking, and necessary expenses for keeping the same." And the general rule is that a sheriff is required to exercise ordinary reasonable care and diligence in keeping property coming into his possession...
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