Fockler v. Martin ( 1871 )

Dat, Ch. J.

I. The first assignment in the demurrer is too general to merit consideration. Nev., §§ 2877 and 2894; Davenport G. L. & C. Co. v. The City of Davenport, 15 Iowa, 6; McKellar v. Stout, 13 id. 487; Jones v. Brunskill, 18 id. 129.

II. The court erred in sustaining the second assignment in the demurrer. The answer distinctly avers that Ansel E. Martin, upon the expiration of his, term of office, offered to deliver to his successor in office, William W. Williams, the said property mentioned in plaintiff’s petition, and said Williams waived the delivery of the same to him, and refused to receive the same. The demurrer admits the truth of these averments; and the averments, if true, certainly constitute a defense to this action. See McKay v. Thorington, 15 Iowa, 28, and McKay v. Leonard, 17 id. 570.

The latter case clearly recognizes the doctrine that an offer upon the part of the outgoing to deliver attached property to the incoming sheriff, and a waiver of delivery by the latter, discharges the former from further responsibility for the safe keeping of the property, and devolves the duty upon the latter. And this must be so upon principle. The Revision, section 391, provides that “ the retiring sheriff shall deliver to his successor all books and papers pertaining to the office, and property attached and levied upon.” Now this duty to deliver must be attended by an accompanying duty upon the part of the successor to receive. If, then, the successor waives actual delivery or refuses to receive the property, why should the retiring sheriff, who no longer has the emoluments of the office, together with his bondsmen, be still liable for the property; and the incumbent, who is paid for discharging his official duties, be exonerated from responsibility ? .

If it is at the option of the incumbent thus to continue the liability of the outgoing sheriff, it is difficult to see when and in what manner he may be relieved of the responsibilities and burden of his expired term.

It would seem that, when he ceased to derive the benefits of office, he ought to be discharged from its burdens, if he has taken the steps provided by the law for effecting such discharge. This view of the law the court seems to have adopted in charging the jury that they should find for plaintiff “ if Martin was sheriff,” as alleged, and “ if there was no proof before them of the delivery of the wood, or offer so to do, to his successor in office.” But the answer alleging such offer to deliver was held bad on demurrer; the evidence offered for the purpose of proving such tender was ruled out, and properly so, it is argued, because there was no issue before the jury to which the evidence would apply.

Under these circumstances the defendant derived from this instruction the same comfort as did Tantalus from the loaded' branches, that ever receded as he put forth his hand to pluck the fruit.

The demurrer should have been overruled.

Reversed.