Shepherd v. Brown
| Decision Date | 25 June 1887 |
| Parties | Shepherd v. Brown and another. |
| Court | West Virginia Supreme Court |
Shepherd
v.
Brown and another.
Supreme Court of Appeals of West Virginia.
June 25, 1887.
1. Sheriff—Notice of Motion for Judgment on Bond—Service.
By appearance to a motion against a sheriff and his securities, under section 5 of chapter 121 of the Code, and repeated continuance of the case generally, by consent of parties, the defendants waive any objection to the notice, because not served in time, but they do. not thereby preclude themselves from moving to quash the notice, because fatally defective on its face.
2. Same—Requisites of Notice.
Such a notice will be treated with great indulgence by the court. All that is required in such a notice is that it should be so plain that the defendants cannot mistake the objects of the motion, however it may be wanting in form and technical accuracy, but the notice must show, when thus indulgently construed, that, by the terms of the act under which the plaintiff is proceeding, he is entitled to recover in this summary manner, and on the trial he must show himself to come fully within the terms of the act under which he is proceeding, for the court will then presume nothing in his favor.
3. Same—Judgment.
Upon a motion under this section and chapter, the court may give judgment against the sheriff and his sureties for so much as the plaintiff is entitled to recover in any form of action by virtue of the sheriff's official bond, though the demand be not of a fixed sum, or one capable of being fixed by arithmetical calculation, but be for an unascertained amount, which, if the sheriff had been sued for a tort, would have sounded in damages.
4. Same—Requisites of Notice.
If the allegations in such notice be that the sheriff having levied an attachment on the defendant's property, which attachment was quashed, and the sheriff ordered to return the property, which he refused to do, and the plaintiff asked judgment for the value of the property, such notice is not fatally defective, on motion to quash, because the plaintiff failed to allege that he owned the property when it was ordered to be returned.
5. Same.
Such notice alleged that the sheriff executed his official bond, which was afterwards approved by the county court, but does not state that it was filed in the clerk's office of the county court. Such omission is not a fatal defect in such notice, on motion to quash.
6. Same.
The notice states that the sheriff levied an attachment, issued against the plaintiff and another, on the property of the plaintiff, but returned the attachment as though the property of the plaintiff so levied on was the property of the other defendant, and when the attachment was quashed the court ordered the sheriff to return the property to such other persons to whom by his return it appeared to belong. This was no judgment of the court that the property belonged to such other defendant, and not to the plaintiff, and it cannot be relied upon as estopping the plaintiff from alleging in such notice that it was his property. It is not res ad-judicata.
7. Same.
In such a notice the plaintiff may claim not only the value of the property not returned by the sheriff, but kept by him, but also the sum for the estimated damages done to the other portion of the property by the sheriff, when in his legal possession, though such property in this damaged condition was returned in obedience to the court's order, —as both of these demands would have been recovered on in a suit on the sheriffs official bond.
[3 S.E. 187]8. Same.
If, taking the whole notice together, it plainly appears that the plaintiff claimed all the property levied on by the sheriff, though this be not stated in a technical manner, and might, if one part of the notice only was looked at, be possibly construed as a claim to an undivided interest in the property, this would not be a fatal defect in the notice on motion to quash.
(Syllabus by the Court.)
Writ of error from circuit court, Hancock county.
This was a motion, under section 5 of chapter 121 of the Code of West Virginia, as amended by chapter 74 of the acts of 1882, for a judgment for so much money as the plaintiff, Caroline A. Shepherd, was entitled to recover, by action on a sheriff's bond, of Richard A. Brown, as sheriff of Hancock county, executed by him with George Brown, Jonathan Alison, John L. Miller, William A. Jones, David Pugh, and Jacob N. Brown, the last of whom had died. The notice was that on the seventh day of November, 1883, she would move the circuit court of Hancock county for judgment against the sheriff, and all of his sureties in said bond, other than Jacob X. Brown, who was dead, for the sum of $242.25, with interest thereon from March 31, 1881; the basis of her demand being set forth in detail in the notice, which was as follows:
"To Richard H. Brown, late Sheriff of Hancock County, West Virginia, and George Brown, Jonathan Alison, John L. Miller, William A. Jones, and David Pugh, his Sureties:
"Take notice that whereas the said Richard H. Brown did on the fourteenth day of December, 1876, give and execute his bond as sheriff of the said county of Hancock, which said bond was at the same time executed jointly and severally by you, the said George Brown, Jonathan Alison, John L. Miller, William A. Jones, and David Pugh, as also by Jacob N. Brown, since deceased, as his sureties, and was approved by the county court of said county, on the eighteenth day of December, 1876, as by the record of said county court fully appears; and whereas one Cynthia Stewart did, on the ninth day of August, 1880, in a certain suit in chancery then pending in the circuit court of said county, in which she was plaintiff, and Samuel Stewart and the undersigned Caroline A. Shepherd were defendants, sue out of said court an order of attachment, against the estate of said defendants, which order of attachment was served on the thirteenth day of August, 1880, by the said Richard H. Brown, then sheriff of the said county, as appears by his return indorsed on said order of attachment, dated, respectively, as last named, by levying on (among other things) the so-called undivided interest of said Samuel Stewart in a lot of wheat in the sheaf, supposed to be 300 dozens; one lot of oats in sheaf in barn, supposed to be 100 dozens; and 270 shocks of corn, —the same being levied on as the property of said Samuel Stewart, but which said property was then and there in fact the property of the undersigned Caroline A. Shepherd; and the said property was, under and by pretended virtue of her several bonds executed by the plaintiff in said suit, or under whatsoever pretended authority it may be, then taken into the possession of the said Richard H. Brown, as sheriff as aforesaid; and whereas by order made in said chancery suit on the thirty-first day of March, 1881, the said circuit court did order and direct that the attachment bonds, being the bonds above mentioned in said suit, be quashed, and that the said personal property be surrendered to the said Samuel Stewart by the said Richard H. Brown, and which said order did in effect quash and set aside the said levy on said personal property; and whereas the said personal property...
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