Tappin v. McCabe

• Citation: 149 P. 460,27 Idaho 402
• Parties: I. F. TAPPIN, Appellant, v. THOMAS MCCABE, as Sheriff of Shoshone County, Respondent
• Decision Date: 31 May 1915
• Court: United States State Supreme Court of Idaho

149 P. 460

27 Idaho 402

I. F. TAPPIN, Appellant, v. THOMAS MCCABE, as Sheriff of Shoshone County, Respondent

Supreme Court of Idaho

May 31, 1915

CHATTEL MORTGAGE-FORECLOSURE-MUST ALLEGE COMPLIANCE WITH STATUTE-POSSESSION OF PERSONAL PROPERTY-SALE.

1. Sec 3413, Rev. Codes, as amended (Sess. L. 1909, p. 149) provides: "In proceeding to foreclose by notice and sale, the mortgagee, his agent or attorney, must make an affidavit stating the date of the mortgage, the names of the parties thereto, a full description of the property mortgaged, and the amount due thereon. Such affidavit shall be sufficient authority to demand and receive possession of the property, if the same can be taken peaceably, but if it cannot be so taken, then such affidavit must be placed in the hands of the sheriff of the county or the constable in the precinct where the property is located, together with a notice signed by the mortgagee, his agent or attorney requiring such officer to take the mortgaged property into his possession and sell the same."

2. Held, that where the plaintiff failed to allege in his amended complaint that the mortgagee, his agent or attorney made an affidavit as required by sec. 3413, Rev. Codes, as amended by Sess. Laws 1909, p. 149, and upon such affidavit demanded the possession of the property described in the chattel mortgage which he sought to foreclose by affidavit and notice, which demand was thereupon refused by the mortgagor, and by reason thereof such affidavit and notice was placed in the hands of the sheriff, said amended complaint was subject to a general demurrer upon the ground that the same did not state facts sufficient to constitute a cause of action.

3. Held, that it was incumbent upon the plaintiff to allege in his amended complaint that he had fully complied with sec 3413, Rev. Codes, as amended by Sess. Laws 1909, p. 149, before a right of action could be maintained against the defendant as sheriff, for his failure or refusal to take into his possession the personal property described in the chattel mortgage under an affidavit and notice of sale, and sell the same.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.

Action for damage against the sheriff of Shoshone county for alleged failure and refusal to take into his possession personal property described in a chattel mortgage under an affidavit and notice of sale. Demurrer to amended complaint sustained by the trial court. Judgment affirmed.

Judgment affirmed, and costs awarded to respondent.

T. P. Wormward, for Appellant, cites no authorities.

J. E. Gyde, for Respondent.

The respondent, as sheriff of Shoshone county, had no authority to sell the mortgaged property in question until appellant had demanded possession of the property and peaceable possession thereof could not be obtained, and the complaint failing to show such demand and failure to obtain peaceable possession by the mortgagee is subject to demurrer. (Sec. 3413, Rev. Codes, as amended by 1909 Sess. Laws 149.) For a construction of the statute before amendment, see Rein v. Callaway, 7 Idaho 634, 65 P. 63.

A sheriff is not responsible for dereliction of duty in failing to execute process if the person demanding the execution thereof has other means at hand to secure his demands. (Townsend v. Libbey, 70 Me. 162; Clark v. Smith, 10 Conn. 1, 25 Am. Dec. 47.)

"A plaintiff cannot recover damages from a sheriff on account of negligence by which an attempted writ was rendered ineffectual, if he contributed to the result by his own negligence." (Parrott v. McDonald, 72 Neb. 97, 100 N.W. 132.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an action brought in the district court of the first judicial district for Shoshone county, against the sheriff of said county for failure to take possession of a certain portion of the personal property described in a chattel mortgage, and sell the same to satisfy the balance due upon an alleged indebtedness to the plaintiff by the mortgagor by notice and sale upon an affidavit by the mortgagee, as provided under sec. 3413, Rev. Codes, as amended by Sess. L. 1909, p. 149.

The plaintiff, in his amended complaint, alleges inter alia, that the defendant is now, and at all times since the month of January, 1913, has been, the duly elected, qualified and acting sheriff of Shoshone county; that on May 7, 1912, one H. D. Bishop made, executed and delivered to the plaintiff, A. F. Tappin, a chattel mortgage on certain personal property described in the plaintiff's amended complaint, as security for the payment of a certain promissory note in the sum of $ 700 due one year from May 7, 1912, bearing interest at seven per cent per annum from date until paid; that said chattel mortgage was in due form and properly acknowledged; that thereafter on May 23, 1913, the full amount of said note remained unpaid; that the property was within the jurisdiction of the defendant sheriff upon the date when the plaintiff, in writing, demanded of the defendant that he, in his official capacity, take into his possession, under and by virtue of said chattel mortgage, for the purpose of foreclosure and sale, a certain portion of the personal property described in said chattel mortgage; that the defendant sheriff wrongfully and negligently failed and refused so to do, and to sell the same pursuant to the demand of the plaintiff. Plaintiff thereafter sets out the reasonable...