W. J. Bean v. H. S. Colton

• Decision Date: 07 October 1925
• Citation: 130 A. 580,99 Vt. 45
• Parties: W. J. BEAN v. H. S. COLTON
• Court: Vermont Supreme Court

130 A. 580

99 Vt. 45

W. J. BEAN v. H. S. COLTON

Supreme Court of Vermont

October 7, 1925

May Term, 1925.

ACTION OF TORT for conversion of certain live stock by an officer. Pleas, general denial, and justification as constable. Trial by court at the June Term, 1923, Orange County, Thompson, J presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Roland E. Stevens for the defendant.

F G. Bicknell and H. K. Darling for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

The action is tort for the alleged conversion of certain live stock. Defendant pleaded in justification that, as constable of the town of Thetford, he attached the property in question in an action returnable to Orange county court, wherein one Walter Picknell was plaintiff and this plaintiff was defendant, and on written application of Picknell for that purpose sold such property in accordance with the provisions of G. L. 2063. Trial was by court, and, on the facts found, plaintiff had judgment and the case comes here on defendant's exceptions.

At the close of plaintiff's evidence defendant moved for a finding in his favor on the ground that plaintiff had not "established a case." The motion was denied and defendant had an exception. This exception is without merit for several reasons. The defendant waived it by proceeding with the trial (Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 A. 656); it is inadequately briefed, it being merely stated in the brief that the court erred in overruling the motion ( McAllister v. Benjamin, 96 Vt. 475, 497, 121 A. 263); and, although plaintiff's evidence was insufficient to make out a case, defendant's concession that the property belonged to plaintiff, that defendant attached it and took possession of and sold it, which concession had the force of evidence, clearly made a prima facie case for plaintiff.

The other exception relied upon is to the judgment. The only question raised by this exception that requires consideration is whether the defendant complied with the requirements of G. L. 2063 in selling the attached property. That statute provides: "When an attachment is made of live animals, or of goods or chattels which are liable to perish or waste or to be greatly reduced in value by keeping or which cannot be kept without great or disproportionate expense, and the parties do not consent to the sale thereof, the property so attached shall, upon request of either of the parties interested, be examined, appraised and sold, or otherwise disposed of, in the manner following: Upon such application by either party to the attaching officer, he shall give notice thereof to the other parties, by delivering to them or their attorneys, a written notice," etc., "at least twenty days prior to the sale of the property. He shall prepare a schedule of the property and appoint three disinterested persons acquainted with its value as appraisers, to be sworn by him; and, if such appraisers are satisfied that the defendant in the action has been informed of the attachment of the property, they shall appraise the same as provided by law."

It is found that defendant attached the property in question as the property of this plaintiff, defendant in the suit of Picknell v. Bean; that thereafter Picknell made written application to defendant to have such property "examined, appraised and sold as provided in Section 2063 of the general Laws"; that defendant thereupon appointed appraisers and made and delivered to them a schedule of the property to be appraised, and they appraised the same; that after the appraisal defendant sent plaintiff notice of the application and of the appraisal, and notice that the property would be sold "as the law provides" on the 8th day of April, 1922; that plaintiff had no notice of the application and proceedings to appraise the property, nor of the appraisal until he received Defendant's Exhibit E. This exhibit is a letter written by defendant to plaintiff on the day of the appraisal, to wit, March 16, 1922, but after the same had been made, and was received by plaintiff.

Was the notice of Picknell's application to have the property examined, appraised, and sold, given as it was after appraisers had been appointed and the appraisal made, such notice as the statute contemplates? We think not. While the statute does not provide when notice of such application shall be given, except that it shall be at least twenty days prior to the sale of the property, manifestly it must be given a reasonable length of time before the appraisers act, so that the parties may have an opportunity to be present if they so desire. Although the statute is silent as to any hearing by the appraisers, the scope of their inquiry is such that in some, if not most, instances a hearing is necessary to intelligent action. Before the appraisers are...