Tuttle v. Hardenberg , 1885 Mont. LEXIS 37 ( 1885 )

De Witt, J.

— We are of opinion that this complaint states a cause of action. The objections to this pleading, urged by respondent’s counsel, are based upon their claim that Sheriff Tuttle had no right, under the law, to turn over the attached hay to his successor, Sheriff Gleason, but should have retained the possession himself. But whether that were the sheriff’s duty or not under our statutes (Comp. Stats., div. 5, §§ 857, 858), we do not think is material to this case. As it appeared by final results, the seizure of the hay was wholly wrongful. In the action in which the attachment was issued judgment went for defendant; and, in the action by the third persons claiming the hay, judgment was for those claimants. They, viz., Mary Sears and Duncan Davidson, claimed the hay from Tuttle on September 28th. On October 8th, defendants Mead and Smith gave Tuttle the indemnity bond. Tuttle then held and kept the hay, at least until December 17th,. when his term of office expired. During all this time his holding was wrongful. He was holding Mary Sears and Duncan Davidson’s property by virtue of a writ of attachment against a person other than Sears and Davidson. Sears and Davidson were, therefore, then unlawfully deprived of their possession of the hay, and the same was converted by Tuttle.

Judge Cooley says, in his work on Torts: “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion. ‘The action of trover being founded on a conjoint right of property and possession,-any act of the defendant which negatives or is inconsistent with such right amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary to be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s right? If he does, that is, in law, a conversion, be it for his own or another person’s use.’ ” (Cooley on Torts, 448.)

Therefore, Tuttle having fully converted the property prior to the expiration of his term of office, Sears and Davidson then had their cause of action against him.

“ It is commonly said that, to sustain trover, the plaintiff must show a legal title; he must have property, general or special, or actual possession, or the right to immediate possession, at the time of the conversion.” (Cooley on Torts, 442, 443.)

They did not sue Tuttle until later, and, when they did, they joined, as a defendant, Gleason, and recovered judgment against both of them. This was surely a judgment against Tuttle, and one by which he was damaged. The foundation for this judgment was in the cause of action arising by reason of Tuttle having seized and held the hay. Whatever may be true as to Sears and Davidson having a cause of action against Gleason for disposing of the hay, this did not deprive them of their cause of action against Tuttle for seizing and holding it. This cause of action they asserted against Tuttle, and obtained a judgment against him. For such damages occurring to Tuttle by reason of his holding the hay, the defendants Mead and Smith agreed to indemnify him.

The Code of Civil Procedure provides, in section 533, as follows: “An action brought against a sheriff for an act done by virtue of his office, if he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be sufficient evidence of his right to recover against such sureties.”

Now, when Tuttle was sued by Sears and Davidson, he notified Mead and Smith, sureties, and they came in and defended the suit. The liability of Gleason and of Tuttle was tried in that case. As we have seen, there was a cause of action existing against Tuttle. We further find that it was tried and established in the suit against him, a suit in which the indemnifiers appeared and defended. Under these circumstances, section 533 of the Code of Civil Procedure declares that the judgment recovered shall be sufficient evidence of the sheriff’s right to recover against the sureties. (Dutil v. Pacheco, supra.)

All these matters appear in the complaint in the action. The judgment of the district court is therefore reversed, and the cause is remanded, with instructions to overrule the demurrers of defendants Mead and Smith.

Reversed.

PembertoN, C. J., and Hunt, J., concur.