Himmelbauer v. Union Bank & Trust Co. , 68 Mont. 34 ( 1923 )

HONORABLE A. C. -SPENCER, District Judge,

sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court.

Plaintiff commenced this suit against defendants, alleging in her complaint two causes of action, the first for a conversion of certain personal property and seeking recovery of its reasonable value, the second claiming damages for the wrongful, unlawful and forcible entry of her home by the defendants and their wrongful and continuous occupancy after such entry. The record discloses the facts to be substantially as follows: In February, 1918, Antone Himmelbauer left the state of Montana, his wife, Mabel Himmelbauer, plaintiff and appellant herein, remaining and living at No. 622 Harrison Avenue, Helena, Montana, with her mother until early in March of the same year, when plaintiff and her mother, Mrs. Cloutier, left for Portland, Oregon. For a long time prior to the departure of the plaintiff and her husband they had lived and made their home at this same residence in Helena. Upon April 1, 1918, the defendant Union Bank & Trust Company caused a writ of attachment to issue out of the district court of the first judicial district for Lewis and Clark county, in an action wherein this plaintiff and her husband were defendants and the Union Bank and Trust Company was plaintiff, and on that day the sheriff of Lewis and Clark county, at the instance of the plaintiff bank, entered the house at 622 Harrison Avenue, in Helena, and levied upon and took possession of certain household furnisMngs and personal property situated therein, made an inventory thereof and placed a custodian in charge. All of this was done during the absence of this plaintiff and her husband.

The evidence shows that on April 1 the sheriff, accompanied by Joseph Chivers, representing the bank, on their way to make the levy met Charles Hageman, a constable, on Harrison Avenue, who accompanied them to the house. Hageman produced a key, unlocked the door and thus was the entrance made. The record does not disclose any previous arrangement between the sheriff and Hageman for their meeting and entrance, nor is it explained in the record what key Hageman used to effect the entrance nor by what means he obtained the key. He got the key from his pocket. Hageman told the sheriff he had attached that property the day before. Plaintiff and her mother returned subsequently and found a keeper in charge of the property. Various keepers and custodians were placed in possession, all of whom retained its possession at the place where attached until April 19, 1918, when Mrs. Cloutier, the mother of plaintiff, was by agreement of all parties made custodian, she remaining as such until the property was removed from the house on May 18 following. During all the time between the levy on April 1 and Mrs. Cloutier’s assumption of her duties as custodian on April 19, the various keepers in charge slept and remained in the house, one room upstairs being used for their bedroom. The plaintiff and her mother had access to all parts of the house at all times, were admitted to and departed therefrom without interference from the keepers and were treated with courtesy and respect. It appears from the record that Mr. Anderson, a keeper for a portion of the time, upon at least one occasion became obnoxious by apparently attempting to “tip-toe” to a point where he could hear conversations between plaintiff and her mother and others who came to the house for consultation with this plaintiff. The property and furniture in the house were not disarranged except that one chair had been moved by the keeper from the dining-room to the kitchen, where the custodian maintained a fire and spent a large portion of Ms time, and the bedroom used by him was not well cared for.

Within the time from the levy until removal of the property Mrs. Cloutier served affidavit of ownership of a part of the property upon the sheriff and demanded its return to her, as did also Mrs. Moriarity, a resident of San Diego, California, and this plaintiff, assuming to act under an assignment to her of her husband’s right to claim the property as exempt, made and served upon the sheriff an affidavit of ownership of the property in controversy, claiming it exempt and demanding its return. All of Mrs. Moriarity’s property was returned to her and likewise all but a small portion of that claimed by Mrs. Cloutier. The plaintiff’s demand was refused. Trial resulted in verdict and judgment for defendants upon both causes of action. Appeal is from the judgment.

Numerous errors are assigned by appellant, but we think -none merit serious consideration, save and except Instruction No. 5 [1] proposed and given by the court. Before passing to a discussion of it, however, we think a condition fairly appears from the record worthy of passing observation. The record is entirely devoid of any facts or circumstances to justify some three or four different keepers remaining in the house at 622 Harrison Avenue, where their presence under the most favorable circumstances would be embarrassing to two ladies, for a period of eighteen days. All were strangers to plaintiff and her mother, their presence in the kitchen and elsewhere about the house at various times of the day and night apparently wholly uncalled for, and why such an unusual length of time was consumed in making inventory and preparing the property for removal and actually removing it is not shown by* the record, is inexplicable and warrants severe condemnation.

At the close of all the evidence the plaintiff proposed ten instructions, all of which were refused save one. The defendants offered four which were all refused, the court instructing the jury in writing in accordance with its views of the law applicable to the facts of the case. Instruction No. 5, given [2] by tbe court, is as follows: “You are further instructed that as a matter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the act of the plaintiff, Mabel Himmelbauer, or her husband Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there.”

There is no conflict in the evidence as to the manner in which the entrance and levy were made. Hageman was in possession of the house at 622 Harrison Avenue on April 1. He was a constable and stated that he had attached the property the day before. He admitted the sheriff who thereupon made the levy. Under that state of facts we think Instruction No. 5 not erroneous. While the general doctrine that a man’s home is his castle, where an officer may not enter against the consent of the owner for the service of civil process, is well established (Ilsely v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425), the rule cannot apply under all circumstances. The design of the law is the preservation of the sanctity of the home, rather than the protection of the property therein (Ilsley v. Nichols, supra), and hence the rule should not be applied under all circumstances as that it might become an instrument to defeat the ends of justice. If the entry of a dwelling-house is made without force, peaceably and even permissibly, an officer may proceed to levy upon goods in the house. (6 C. J. 219; 4 Cyc. 581; Hitchcock v. Holmes, 43 Conn. 528.) The writ commanded the sheriff to attach the property of defendants. The statute requires that the officer shall seize and take possession of the property in making his levy (Eev. Codes, secs. 9260, 9262), and hence, having gained a peaceable entrance, he was but pursuing the plain requirement of the law in making the levy and seizing the property. In substance, the instruction complained of so told the jury and was a correct statement of the law as applied to the facts of this ease.

(Resubmitted September 20, 1923. Decided October 19, 1923.)

Appellant assigns as error the refusal of the court to give his offered Instruction No. 1, being a statement of the issue as [3] defined in the pleadings. While the practice of giving such statement to the jury is commended (Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 Pac. 215; Band v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70), error cannot be predicated upon its failure so to do.

Other assignments of error are without merit and require no further consideration.

We think the jury was fully and fairly instructed upon all matters of law applicable to the case and that the judgment should be affirmed, and it is so ordered.

Affirmed.

Mr. Chief Justice Callaway and Associate Justices Cooper, Holloway and Stark concur.