Wingate v. Davis

• Decision Date: 11 December 1926
• Docket Number: No. 5972.,5972.
• Citation: 77 Mont. 572
• Parties: WINGATE v. DAVIS, Sheriff et al.
• Court: Montana Supreme Court

77 Mont. 572

WINGATE

v.DAVIS, Sheriff et al.

No. 5972.

Supreme Court of Montana.

Dec. 11, 1926.

Appeal from District Court, Valley County; C. D. Barton, Judge.

Action by L. C. Wingate against Floyd Davis, as Sheriff of McCone County, and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Hurd, Rhoades & Hallett, of Glasgow, for appellant.

Homer A. Hoover, of Circle, and C. C. Hurley, of Glendive, for respondents.

RODGERS, District Judge (sitting in place of HOLLOWAY, J., absent on account of illness).

This action was instituted to recover damages from Floyd Davis, as sheriff, and the Fidelity & Deposit Company of Maryland, surety on his official bond. Upon the trial, at the close of all the evidence, the court sustained defendants' motion for a directed verdict, and judgment was entered. Plaintiff's motion for a new trial being overruled, he appeals from the judgment.

It is alleged in the complaint that–

“On or about the 14th day of December, 1921, the defendant Floyd Davis, acting in his official capacity, and in virtue of and under color of his office as such sheriff of McCone county, Montana, but without right or authority in law or otherwise, and well knowing that plaintiff was the owner and entitled to said cattle above described, * * * took said twenty head of cattle and all thereof from the possession of the plaintiff, and converted the same to his own use.”

Defendants in their answer affirmatively pleaded that plaintiff's cause of action was barred under certain provisions of our statute.

The act complained of by plaintiff is alleged to have taken place on December 14, 1921, and this action was commenced March 18, 1924, well within the three-year period as provided by section 9031, Revised Codes of 1921, which reads:

“Within three years: 1. An action against a sheriff, * * * upon a liability incurred by the doing of an act in his official capacity and in virtue of his office,” etc.

Since this is an action against a sheriff and his surety upon a liability incurred by the “doing of an act in his official capacity and in virtue of his office,” it comes within the provisions of this statute. Paige v. Carroll, 61 Cal. 211;Woodham v. Cline, 130 Cal. 497, 62 P. 822;Dennison v. Plumb, 18 Barb. (N. Y.) 89;Hill v. White, 46 App. Div. 360, 61 N. Y. S. 515;Bishop v. McGillis, 80 Wis. 575, 50 N. W. 779, 27 Am. St. Rep. 65. Furthermore, “by the adoption of the statute of another state, the construction theretofore placed hereon by the courts of such state is impliedly approved, provided our own statute is silent as to the matter of construction.” State v. State Board of Examiners, 59 Mont. 557, 197 P. 988, and cases there cited.

The law of California differs from ours only in that the time for the commencement of an action upon a liability created by statute, or for taking, detaining, or injuring any goods or chattels, is three years, and against a sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, is two years. Before the adoption of these provisions by our Legislature, the Supreme Court of California, in Paige v. Carroll, supra, an action against a sheriff and his sureties upon his official bond to recover damages for the seizure and sale of personal property under a writ of attachment, held that the provision of the section limiting the time for the commencement of an action against a sheriff for acts done in his official capacity and in virtue of his office is controlling.

Plaintiff's contention, briefly stated, is that he purchased certain cattle at a foreclosure sale on the 5th day of December, 1921, held by virtue of chattel mortgages given by Roy Decker to the First National Bank of Wolf Point, and that thereafter, in a claim and delivery suit wherein Mike Tabat was plaintiff and the First National Bank of Wolf Point and John Erickson, its agent, were defendants, the defendant Floyd Davis, as sheriff, and while the plaintiff was the owner and entitled to possession of the cattle, took possession thereof and converted them to his own use.

In considering the question whether the court rightly directed a verdict, we will apply the rules that the case should not have been withdrawn from the jury “unless it follows as a matter of law that a recovery could not be had upon any view of the evidence, including the legitimate inferences to be drawn from it,” and “every fact will be deemed to be proved which the evidence offered by plaintiff tends to prove.” Koerner v. Northern Pac. Ry. Co., 56 Mont. 511, 186 P. 337;Johnson v. Chicago, Mil. & St. Paul Ry. Co., 71 Mont. 390, 230 P. 52.

The description given of the cattle in the complaint is twenty head of cattle consisting of nine cows and three steers branded V bar lazy 3 on right shoulder; also, two black bull calves, four heifer calves, one black yearling heifer, and one black yearling steer. The plaintiff testified:

On the 13th day of December, 1921, I was the owner of twenty head of cattle, consisting of nine cows and three steers branded V bar lazy 3 on the right shoulder, two black bull calves, four heifer calves, one black yearling heifer, and one black yearling steer. I obtained possession of these cattle at the Decker foreclosure sale. This sale was held by John Erickson, as agent for the First National Bank of Wolf Point, at the Ray Decker farm, on November 25, 1921, and I bid in the cattle; they were struck off to me. After I obtained possession of those cattle, I turned them over to Mr. Erickson and made some arrangements with Mr. Groh to keep them until they could be taken out of there. I decided to send them down to the farm at Sidney. At the time the mortgage was foreclosed the cattle were in Decker's possession. The sheriff never delivered any of the cattle to me, never paid for or delivered any of the cattle to me, never paid for or delivered any of them, and I never received the cattle from anybody else or any part of them. I never authorized the sheriff to take the cattle or any of them. The brand called V bar lazy 3 was denominated the Roy Decker brand.

Erickson, witness for plaintiff, testified:

I foreclosed a certain mortgage in the fall of 1921 for the First National Bank, executed to the bank by one Roy Decker, and I took possession of certain cattle described in the mortgage as the cattle of Roy Decker. I know and am familiar with the cattle involved in this action. I took possession of them, among others, under these certain mortgages. After Mr. Wingate had purchased these cattle he turned them...