Probstfield v. Hunt
| Decision Date | 30 October 1908 |
| Citation | 118 N.W. 226,17 N.D. 572 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Lilly E. Probstfeld against William E. Hunt, Sheriff. Judgment for plaintiff, and defendant appeals.
Affirmed.
F. A Ball and Turner & Wright, for appellant.
A third person, claiming property taken under attachment, is limited for remedy to the mode ordained by statute. Barry v McGrade, 14 Minn. 153; King v. Oiser, 4 Duer, 431.
Must show notice. Dodge v. Chandler, 9 Minn. 97; Barry v McGrade, supra.
M. A Hildreth, for respondent.
Affidavit of claim and demand for property attached are necessary only where it is in possession of defendant in the writ. Taylor v. Hanson, 8 N.W. 825; Barry v. McGrade, 14 Minn. 163; Ohlsen v. Manderfield, 10 N.W. 418.
This is an action for damages on account of the alleged conversion of personal property consisting of household goods, furniture, cooking utensils, table and silverware, wearing apparel, books, and other personal property, which property is alleged in the complaint to be the property of the plaintiff. The value of the property is alleged to be the sum of $ 650. Plaintiff demands judgment for said sum and interest from October 1, 1906, together with costs and disbursements. The answer is, in part, a general denial, and the defendant also alleged as a justification for the taking of the property the following facts: That a judgment was rendered on the first day of October, 1906, in favor of Wasem & Gaard, who were plaintiffs in a certain action brought by them against one W. G. Probstfeld. That said plaintiffs Wasem & Gaard, had caused a writ of attachment to be issued in said action, and delivered the same to the defendant, who was sheriff of Cass county. That the defendant duly took possession of such property under and by virtue of said writ of attachment. Later an execution was issued upon said judgment and placed in the hands of the defendant for service. That the defendant thereupon levied upon the property which was in his possession by virtue of the levy under the said writ of attachment, and, after due notice as provided by law, sold said goods under said execution. The answer further alleges that during the time said goods were in the possession of the defendant neither the plaintiff nor any one in her behalf made any claim upon or demand for said property, nor did she or any one in her behalf make an affidavit of her title to said property, or any part thereof, or her right to the possession thereof. A jury was impanelled at the trial, and after the taking of testimony on behalf of the plaintiff and defendant, and after both parties had rested, the court directed a verdict in favor of the plaintiff upon all the issues raised by the pleadings, except as to the value of the property, and as to that question the court submitted it to the jury. The jury found in favor of the plaintiff for the sum of $ 473.40. Judgment was rendered upon the verdict for said sum, and the defendant has appealed from such judgment, and has procured the settlement of a statement of the case.
The errors specified in the statement of the case are numerous but in the brief the counsel for the appellant assigns but one error, and that is that no demand or affidavit of the title and ownership of the property was made or presented to the defendant by the plaintiff or her agent. It is the contention of the counsel for the appellant that the failure to make a claim of ownership and title of the property is fatal to any recovery in this action, and he bases such contention upon section 6951, Revised Codes 1905, which reads as follows: "If any property levied upon by the sheriff by virtue of a warrant of attachment is claimed by any other person than the defendant, and such person, his agent or attorney, makes...
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