Saxon v. Purma

J. Fred Jones, Justice.

This is an appeal by Jack Saxon, former sheriff of Benton County, from a circuit court judgment rendered against him by default in favor of the appellee, Arthur F. Purma, on Purma’s motion to tax as cost the rental value of land for the storage of mobile homes levied on by Saxon under a circuit court judgment in which the Commissioner of Revenue was the plaintiff and Brown Enterprises, d/b/a Homestead Mobile Fiomes, was the defendant.

The Commissioner of Revenue obtained a judgment against Brown Enterprises, d/b/a Homestead Mobile Homes, Rogers, Arkansas, and caused a writ of execution to issue on the judgment. The writ was placed in the hands of Sheriff Saxon and he levied the execution on a number of mobile homes belonging to the defendant, Brown Enterprises. The appellee in the case at bar was not a party to the original action, but on October 11, 1972, he and Mrs. Purma filed a motion in the original action designated “Motion to Tax Costs.” They alleged in their motion that they are the owners of a tract of land in the City of Rogers; that on January 12, 1972, the plaintiff, Commissioner of Revenue, caused a writ of execution to be issued on a judgment obtained by the Commissioner against Brown Enterprises; that said writ was duly issued by the court and placed in the hands of the Benton County sheriff and was subsequently on January 24, 1972, levied by the sheriff upon fifteen mobile homes, together with office furniture. The petitioners then alleged that in levying the execution the sheriff took possession of the mobile homes, orally contracted with the petitioners to place the mobile homes on a portion of the petitioners’ property, where they remained until August 9, 1972. The petitioners alleged that no rental fee had been settled upon by them and the sheriff at the time of the alleged agreement, but that on August 16, 1972, they submitted to the sheriff of Benton County and the Commissioner of Revenue a formal claim and bill for $2,756 as a reasonable rental fee of $1.00 per day per unit. They alleged that both the sheriff and the Commissioner of Revenue had failed and refused to pay the claim, and that the petitioners were entitled to have said claim assessed as proper costs in the action. The petition then prayed as follows:

“WHEREFORE, petitioners pray the court to assess and tax their claim of $2,756.00 as costs in the above case, jointly and each of them severally, against the plaintiff and the Sheriff of Benton County and order the same paid to the petitioners forthwith."

Notice of the motion was served on the parties by ordinary mail.

On October 25, 1972, the appellant Jack Saxon, as sheriff of Benton County, filed a motion to quash the motion filed by Mr. and Mrs. Purma on the grounds that it was actually a complaint stating a separate cause of action separate and distinct from the cause of action in which it was filed, and that service was not obtained as provided by law.

On November 2, 1972, the Commissioner of Revenue filed a response to Purmas' motion to tax costs in which he admitted he caused an execution to be issued on his judgment on January 12, 1972, but did not know when the execution was placed in the hands of the Benton County sheriff or the date the execution was levied. He denied the other allegations in the motion but admitted that both he and the sheriff had failed and refused to pay Purmas’ claim. He prayed that the motion to tax costs be dismissed and as a counterclaim against the Purmas, he alleged that they agreed the property could be stored on their premises without cost for a reasonable time, and agreed, through their attorney, that they would assume responsibility for the safety of the property. He then alleged that the property had been damaged in the amount of $10,000, for which he prayed judgment. The Commissioner also cross-complained against Westinghouse Credit Corporation, who claimed a lien on the property, and Charles Tudor as trustee in bankruptcy of the original defendant Brown Enterprises, alleging that on March 15, 1972, he was served with a copy of Notice of First Meeting of Creditors in the matter of Brown Enterprises, Inc., bankrupt under order dated March 14, 1972, together with the usual restraining order. He alleged that any sum deemed to be owing for storage before April 27, 1972, was the responsibility of the trustee in bankruptcy since until that date, the property was in the constructive possession of said trustee.

On November 7, 1972, Mr. and Mrs. Purma filed a reply to the Commissioner’s response and counterclaim stating that they had already pleaded the entry of judgment for the plaintiff Commissioner of Revenue in the original action; the issuance of execution thereon on or about January 12, 1972; and the levy of the execution by the Benton County sheriff on the mobile homes and miscellaneous office equipment “located upon petitioners’ land on or about January 24, 1972.” The petitioners then denied in their reply that they ever agreed that the storage of the homes upon their land should be without cost, or that they ever assumed responsibility for the property. The petitioners renewed their prayer as follows:

“WHEREFORE, petitioners renew their prayer for relief as prayed in their original Motion to Tax Costs and further pray that plaintiff’s answer and counterclaim against the petitioners be dismissed.”

No action was taken on Saxon’s motion to quash filed on October 25, 1972, but on the same day a summons was issued in the original cause and served upon him on November 8, 1972. The summons was directed to the coroner of Benton County and commanded him to summon “Jack Saxon, Benton County Sheriff, to answer in twenty days after the service of this summons upon him a Motion to tax costs filed against Commissioner of Revenue in the Benton County Circuit Court by Arthur F. Purma and Ruth W. Purma. Petitioners, and warn him that upon his failure to answer, the Complaint will be taken for confessed; and you will make due return of this Summons within twenty days after the date hereof. ” (Emphasis added).

On January 4, 1973, Westinghouse Credit Corporation responded to the Commissioner of Revenue’s cross-complaint. It admitted that the order granting application to reclaim property and ordering sale of property was filed on April 27, 1972, in the United States District Court for the Western District of Missouri, but denied that it was responsible for any delay which may have occurred prior to the date of filing said order.

On January 30, 1973, the Commissioner of Revenue filed a motion to dismiss the motion to tax costs on the ground that the “costs in this action are to be taxed as costs in the bankruptcy action pending in Federal Court and that court has exclusive jurisdiction over this question." On February 13, 1973, the trial court granted the Commissioner's motion in language as follows:

“On the 13th day of February, 1973, the Commissioner of Revenue’s motion for dismissal for lack of jurisdiction came on for hearing before this court. After argument and submission for [sic] briefs, it was found, in so far as the Commissioner of Revenue for the State of Arkansas is concerned, exclusive jurisdiction of the subject matter lies in bankruptcy court, and accordingly,

IT IS HEREBY ORDERED that the motion to tax costs of Mr. and Mrs. Arthur F. Purma is dismissed with prejudic'e in so far as the Arkansas Commissioner of Revenue is affected.”

On February 27, 1973, Jack Saxon, as former sheriff of Benton County, also filed a motion to dismiss Purma’s motion to tax costs on the ground that the motion to tax costs should be filed as a part of the bankruptcy action currently pending in Federal Court, and the Benton County Circuit Court had no jurisdiction in the matter. No action was taken by the court on this motion until April 3, 1973, but in the meantime, on March 1, 1973, Mr. Purma filed a motion reciting as follows:

“ [Petitioner's claim was filed herein on the 11th day of October, 1972, as a motion to tax costs; that essentially his cause of action consists of a claim on contract for reasonable rental; that the said contract was entered into between the petitioner and the defendant. Jack Saxon; that the petitioner has no liquidated claim against the defendant in the above cause; that any costs taxable in the above suit resulting from the outcome of petitioner’s claim are merely incidental to petitioner’s action and are not essential or a prerequisite to same that petitioner’s cause was therefore improperly filed as a motion to tax costs in the above cause and should therefore be severed and given separate standing as an independent action in the Benton County Circuit Court.

2. Petitioner further states that separate and independent service of process upon petitioner’s cause was had upon the defendant Jack Saxon; that more than twenty (20) days have elapsed since the said service was accomplished and that the said defendant is therefore in default and the petitioner entitled to judgment.

3. WHEREFORE, petitioner prays the court that his above-styled claim against the defendant. Jack Saxon, be severed and given standing as a separate and independent action in the above court and that the petitioner be permitted to take judgment by default against said defendant. Jack Saxon.”

On April 3, 1973, the trial court denied Saxon's motion to dismiss and granted Purma's motion for severance and default judgment against Saxon in language as follows:

“Now on this 28th day of March, 1973, comes on for decision the Motion to Dismiss of the respondent, Jack Saxon, and the Motion to Sever of the petitioner, Arthur F. Purma, in the above case, and the court being well and truly advised of all the premises here finds:

1. That the Motion to Dismiss of the respondent, Jack Saxon, is without merit and should be overruled.

2. The court finds that the claim of the petitioner, Arthur F. Purma, against the respondent, Jack Saxon, filed as a Motion to Tax Costs in the above cause constitutes a separate and distinct cause of action which should be severed and proceed forward as a separate civil action in this court, and that the said petitioner’s Motion to Sever should therefore be granted.

3. The court further finds that the defendant, Jack Saxon, having been duly served with process upon the petition and claim against him by the plaintiff, Arthur F. Purma, and the said defendant having answered not within the time provided by law, the said defendant should be granted ten (10) days from the entry of this Order to show cause why judgment by default should not be entered against him in favor of the plaintiff, Arthur F. Purma, on his claim aforesaid now pending as an independent civil action herein.”

On April 13, 1973, Saxon filed a response to the order to show cause alleging that he did in fact respond to the motion to tax costs by filing his motion to quash on October 25, 1972, and that by virtue of Purma’s motion to sever he waived his right to any default judgment against Saxon and Saxon prayed additional time for filing an answer.

On July 5, 1973, the trial court found that it had jurisdiction of the parties and the subject matter, and found that Saxon was justly indebted to Arthur F. Purma in the amount of $2,756 as a fair and reasonable rental for the storage of mobile homes on Purma’s land under an oral agreement therefor from January 24 to August 10, 1972. The trial court entered default judgment in favor of Arthur F. Pur-ma against Jack Saxon in the amount of $2,756, together with interest at six per cent from April 24, 1973, together with all costs of action for which execution might issue as provided by law.

On appeal to this court Saxon designated the points he relies on for reversal as follows:

“That the trial court erred in entering the default judgment because the appellant herein had filed a responsive pleading to the original motion filed by the appellee.

That the trial court erred in entering a default judgment because the appellee by his motion to sever materially altered the nature of this lawsuit and therefore waived the right to take a default judgment.

That the trial court erred in not sustaining the motion to dismiss filed by appellant herein because this matter is properly a matter for the bankruptcy court.”

Actual service was had on Saxon after he filed his motion to quash, so we shall only discuss his second and third assignments.

A sheriff has no discretion in carrying out an execution ordered by a court of competent jurisdiction toward the satisfaction of a valid judgment. Indeed, a sheriff is subject to severe penalties if he fails to do so. In addition to other statutory penalties, a sheriff is liable for the whole amount of the execution if he fails or refuses to levy it. Ark. Stat. Ann. § 30-1001 (Repl. 1962).

Ark. Stat. Ann. § 12-1725 (Repl. 1968) provides as follows:

“The Sheriff, Constable or other officer shall safely keep all property taken or seized under legal process, and shall be allowed by the court the necessary expenses of doing so, to be paid by the plaintiff, and taxed in the cost.”

Mr. and Mrs. Purma and Jack Saxon were not parties to the original suit and only became involved in it when the Pur-mas filed their motion on October 11, 1972, to tax their claim as costs in the action to which Saxon had never been a party. We may reasonably assume that all the parties were familiar with the provisions of § 12-1725, supra, and that the “Motion to Tax Costs” filed by the Purmas in this case was exactly what it purported to be. Neither the Commissioner of Revenue nor the sheriff of Benton County was named in Pur-mas’ motion to tax costs. They both were referred to by title in the same motion and there is no question that the motion was filed in the original cause in which the Commissioner was the plaintiff and the Purmas and Sheriff Saxon were strangers. The Commissioner of Revenue filed a response to Purmas’ motion to tax costs. He practically admitted his liability for Purmas’ claim to be taxed as costs. He contended, however, that the state court had lost jurisdiction of the subject matter to the Federal Bankruptcy Court, and the trial court apparently agreed.

It is difficult to understand how the state trial court concluded that it had lost jurisdiction over Purmas’ petition to tax costs against the original plaintiff. Commissioner of Revenue, and retained jurisdiction of the same petition against the sheriff of Benton County. The trial court apparently considered Purmas’ motion as a “Motion to Tax Costs” insofar as the original plaintiff Commissioner of Revenue was concerned, but considered it as a suit on contract insofar as Sheriff Saxon was concerned. It would appear that if the trial court lost jurisdiction of the subject matter of Purmas’ motion to the Federal Court insofar as the Commissioner of Revenue was concerned, the same rule should apply with equal force to the sheriff of Benton County. We do not consider the effect of bankruptcy further because we are of the opinion that Purma was not entitled to a default judgment under Purma’s motion to sever.

There is no question that the motion filed by Mr. and Mrs. Purma remained a motion to tax costs until after the trial court found that the bankruptcy court had exclusive jurisdiction of the subject matter insofar as the Commissioner of Revenue was concerned. The Commissioner of Revenue, as plaintiff in the original cause of action, would have been liable under the statute, § 12-1725, supra, as well as his response, had the trial court not found that the bankruptcy court had exclusive jurisdiction over the subject matter (apparently costs). The sheriff who levied the execution had a right to rely on the statute for protection against personal liability in the proper performance of his statutory duties. He had a right to assume that his arrangement for storage would be taxed as costs and awarded against the plaintiff as provided by statute. The summons served on Sheriff Saxon summoned him to answer within twenty days “a motion to tax costs filed against Commissioner of Revenue ...” (Emphasis added). Saxon had every reason to consider Purmas’ claim as a legitimate item of cost to be assessed against the Commissioner of Revenue, and he had no apparent reason to suspect that Purma would abandon his motion to tax his claim as costs and seek a separate judgment against him on contract, until Purma filed his motion to sever.

Purma’s motion to sever was filed after his original motion was dismissed as to the Commissioner of Revenue. In the motion to sever Purma stated that his claim was essentially a cause of action on contract for reasonable rental entered into between him and the defendant Jack Saxon. He admitted that his cause was improperly filed as a motion to tax costs in the original lawsuit and should, therefore, be severed and given separate standing as an independent action in the Benton County Circuit Court. He then prayed that his claim against Saxon be severed and given standing as a separate and independent action, and that he be permitted to take a default judgment against Saxon. It would appear that after the order of dismissal as to the Commissioner of Revenue rendered on February 13, 1973, and filed on February 26, there would be nothing left to sever under Purma’s motion filed on March 1, 1973.

As we view Purmas’ original motion, it remained a motion to retax costs both as to the Commissioner of Revenue and the sheriff of Benton County. We agree with the appellant that the rule of law announced in Lowrey v. Yates, 212 Ark. 399, 206 S.W. 2d 1, applies to the facts in the case at fc?ar. In Lowery we quoted with approval the general rule from 49 C.J.S., § 194, p. 340, in this language:

“ ‘Where the complaint is amended in a matter of substance after default, a valid default judgment cannot be entered on the amended pleading unless the defendant is duly notified of the amendment and given opportunity to plead. Where the declaration or complaint is amended in a matter of substance after defendant has defaulted, the amendment opens the case in default, and a valid default judgment cannot thereafter be entered on the amended pleading, unless the defaulting defendant is properly notified of, or served with, the amended pleading and given opportunity to plead, and then fails to do so within the proper time.’ ”

See also Shepherd v. Grayson, 200 Ark. 199, 139 S.W. 2d 54.

In the case of Hudgins v. Beavers, 69 Ark. 577, 65 S.W. 99, Deputy Sheriff Beavers incurred expenses in taking care of personal property under an attachment levied by the sheriff through another deputy. Beavers filed a complaint directly against the original plaintiff and testified at the trial that his services were worth 13.00 per day and that he kept the goods for thirty-five days until they were released to the defendant in the suit as exempted property. The proof on behalf of the defendant was that the deputy’s services were only worth SI5.00 or $20.00 and that the goods might have been kept for the same time in a safe place for that amount. The situation in Hudgins was reversed from the situation in the case at bar in that the suit in Hudgins was on contract but was erroneously taxed as costs in the trial court. In that case this court said:

“No claim for these services as costs in the original suit was ever presented by the sheriff, but the deputy sues for the same in this independent suit, as per contract between himself and the defendants. * * * The circuit court * * * dismissed the suit as on contract, and permitted it, over the objection of defendant, to progress, treating it as a motion to retax costs, and rendered judgment in favor of plaintiff for the sum of $25 and costs.”

There was no appeal from the judgment of the circuit court dismissing the suit on contract but in reversing the judgment for the $25 taxed as costs, this court said:

“The circuit court was without jurisdiction to adjudicate the matter as on a motion to retax the costs, for the costs involved had not accrued in this proceeding, and neither the sheriff nor any of the parties in the attachment proceeding had moved for a retaxing of the costs. Nor was there ever any motion for that purpose. The judgment is therefore reversed, and the cause dismissed without prejudice.”

As already pointed out, Ark. Stat. Ann. § 12-1725 (Repl. 1968) required the sheriff to safely keep and preserve the property taken or seized under legal process and directed the necessary expense in doing so to be paid by the plaintiff and taxed as costs. Purma had a right to pursue his claim as a motion to tax costs .under the provision of this statute and when he did so, Sheriff Saxon had a right to rely on such procedure as protection against separate and independent personal liability on contract. We are of the opinion that in Purma’s motion to sever, he stated for the first time an independent and totally separate cause of action against Saxon on contract, and Saxon was entitled to notice and time to answer in defense of such new demand.

The judgment is reversed and the cause remanded.

Harris, C.J., and Fogleman, J., dissent.