Shepherd v. Brown.

• Decision Date: 25 June 1887
• Parties: Shepherd v. Brown.
• Court: West Virginia Supreme Court

30 W.Va. 13

Shepherd

v.Brown.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1887.

Decided June 25, 1887.

1. Notice Appearance Continuance.

By appearance to a motion against a sheriff and his sureties under section 5 of chapter 121 of the Code and repeated continuances of the ease 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. 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 can not mistake its objects, 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 presume nothing in his favor.

.3. Notice Judgment Official Bond.

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, for which, if the sheriff had been sued for a tort, the action would have sounded in damages.

4. Notice.

If the allegation in such notice be, that the sheriff having levied an attachment on the defendants' 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 he returned.

5. Notice.

Such notice alleged, that the sheriff executed his official bond, which was afterwards approved by the County Court, but failed to 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. Notice.

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 this 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 person, to whom by his return it appeared to belong. This was not a judgment of the court, that the property belonged to the other defendant and not to the plaintiff; and it cannot be relied on as estopping the plaintiff from alleging in such notice, that it was his property. It is not res adjudicata.

7. Notice.

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 a sum for the estimated damages done to another portion of the property by the sheriff, while it was in his legal possession, though this property in this damaged condition was returned in obedience to the court's order, as both of these demands could have been recovered on in a suit on the sheriff's official bond.

8. Notice.

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, if one part of the notice only was looked at, might possibly be construed as asserting a claim to no undivided interest in the property, this would not be a fatal defect in the notice on motion to quash.

Statement of the case by Green, Judge:

This was a motion under section 5 of chapter 121 of the Code as amended by chapter 74 of the acts of 1882 for a judgment for so much money, as the plaintiff, Caroline A. Shep- herd, was entitled to recover by action on a sheriff's bond of Richard A. Brown, sheriff of Hancock county, executed by him with George Brown, Jonathan Allison, John L. Miller, William A. Jones, David Pugh and Jacob N. Brown, the last of whom had died. The notice was, that on the 7th 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 N. 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 is as follows:

"To Richard H. Brown, late sheriff of Hancock county, West Virginia, and George Brown, Jonathan Allison, John L. Miller, William A. Jones and David Pugh, his sureties:

" Take notice, that, whereas the said Richard H. Brown did on the 14th 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 Allison, 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 18th day of December, 1876, as by the record of said County Court fully appears; and whereas, one Cynthia Stewart did, on the 9th day of August, 1880, in a certain suit in chancery men 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 13th day of August, 1880, by the said Richard H. Brown, then sheriff of the said county, as appears by his return endorsed 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 Caro- line A. Shepherd, and the said property was, under and by pretended virtue of two 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 31st 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 has not, nor has any part of it, been returned or surrendered to the said Samuel Stewart, or to me, or to any other person for the use of said Samuel Stewart, or of me, but has been retained and kept by said Richard H. Brown, who refuses to deliver the same to the said Samuel Stewart, or to me (excepting that the corn husked from said shocks has been returned, but in a damaged condition): Now, therefore, I will, on Wednesday, the 7th day of November, 1883, being the 3d day of November term, 1883, of the Circuit Court of said county, move the said Circuit Court for judgment against you and each of you in my favor, for the sum of §242.25, with interest thereon from the 31st day of March, 1881, being

For the value of wheat so failed to be surrendered............ $121 00

For the value of oats so failed to be surrendered........... 56 25

For the value of corn fodder so failed to be surrendered....... 55 00

And for damages to corn returned as aforesaid............... 10 00

Total............................................... $242 25

"Together with interest thereon as aforesaid.

" Caroline A. Shepherd."

This notice was duly served on Richard H. Brown, the" late sheriff, and George Brown, one of his sureties in said bond. The case was docketed at the term, to which this notice was returnable, and was continued by consent. Thereafter it was in like manner continued generally three terms of the court by consent of parties, and at two other terms it was continued generally. On June 23, 1884, an order was made, that there was executed in open court and approved as sufficient the bond of Caroline A. Shepherd with Samuel Stewart her surety for the costs of the suit in the penalty of $60.00; and finally on November 2, 1885, the following final order was entered in the case:

"This day came the parties, by their attorneys; and the defendants move to quash the notice herein, because

First. It was not served in proper time.

Secondly. It joins claims that should not be joined.

Thirdly. No cause of action in favor of said Caroline appears.

Fourthly. Notice is not the proper remedy, if any exist.

Fifthly. Other errors and imperfections.

And the said notice being duly argued it is considered by the court that the same be and it is sustained, and, that the defendants recover their costs by them in their defence expended."

From this judgment of the court a writ of error was allowed by this Court on February 5, 1886.

John R. Donahoo for plaintiff in error.,

Ewing, Melvin and Riley for defendants in error.

Green, Judge:

The case, briefly stated in the notice, is as follows: An attachment was by order of the Circuit Court of Hancock county issued against the estate of the plaintiff and one Samuel Stewart, and the defendant as sheriff of said county levied the same on certain wheat, oats and corn, the property of the plaintiff, and the party issuing the attachment having attempted to give...