Citation Numbers: 15 Wyo. 450, 89 P. 745
Judges: Announced, Called, Disqualification, Eirst, Hon, Matson, Potter, Scott, Stead
Filed Date: 4/15/1907
Status: Precedential
Modified Date: 7/20/2022
The Beeman & Cashin Mercantile Company brought an action in justice court against Henry Sorenson for the recovery of a money judgment, and secured the issuance of a writ' of attachment at the commencement of the suit. Subsequently an alias writ of .attachment was issued, under which the deputy sheriff attached certain mares as the property of the defendant. The trial before the justice of the peace resulted in a judgment for the defendant and an order discharging the attachment and releasing the attached property. An appeal was taken to the District Court, where a trial was had de novo, and a judgment rendered for the plaintiff for a part of its claim and costs, and execution was awarded, but without any reference in the judgment to the attachment or the attached property. The judgment was rendered April 10, 1905. On May 5, 1905, the defendant paid to the clerk of court the amount of the judgment, together with the costs, excepting certain expenses incurred by the deputy sheriff in keeping and caring for the attached property. It does not appear, however, whether or not the amount of those expenses had been certified by the sheriff to the clerk and attempted to be entered by the latter as costs in the case at the time of defendant's payment; but no- order allowing the amount had then been made, nor had there then been any application for such order, so far as the record discloses.
Subsequently, and during the same term of court, the plaintiff filed an affidavit of the deputy sheriff, pursuant to the provisions of Section 1114, Revised Statutes of 1899, showing the expense necessarily incurred in the keeping and caring for the attached property, and praying ah allowance of the same to the sheriff. At the foot of that affidavit was endorsed over the signature of the trial judge, “Order allowed,” though no formal order was entered. Afterward, and at the same term, the defendant Sorenson filed a motion to vacate the supposed order upon several grounds, one being that the defendant had not been notified of the applica
The last mentioned motion was opposed by written objections filed on behalf of the defendant supported by affidavits. The several objections briefly stated were'as follows: (1) Because plaintiff’s said motion was not filed until after the expiration of the April term at which the final judgment in the case had been rendered. (2) Because the property had not been taken under any valid writ of attachment. (4) Because the alias writ of attachment was invalid. (5) Because the property was not at the time when taken by the sheriff or at any time subsequent thereto the property of or in the possession of defendant, and that-the defendant did not have any interest therein or any part thereof. The affidavits supporting such objections tended to show that the attached property did not belong to the defendant when the attachment was levied or at any time afterward, but that the same belonged to the wife of defendant, and that before the execution-of the writ, defendant’s attorney had so notified the officer. Counter affidavits were filed by plaintiff upon the question of the ownership of the property. Upon a hearing the court denied plaintiff’s motion, and entered judgment against the plaintiff for the amount of the expense so incurred by the sheriff, together with accruing costs for the care of the attached property, and ordered that execution issue therefor. A motion was afterward filed by the plaintiff to retax such costs by assessing them against the defendant instead of the plaintiff. That motion was denied, and the plaintiff brings the case here on error.
The ultimate question involved is whether the defendant should be held liable for the expenses incurred by the sheriff
Wé suppose that an officer’s application for an order allowing expenses incurred by him in keeping attached property should be made within a reasonable time, to be determined upon the circumstances of each case, and that unreasonable delay, where the situation has so changed without fault of the party to be charged as to render the allowance unjust, might authorize on that ground a disallowance of the claim; but there is nothing in the statute or the nature of the application which necessarily requires the application or the order to be made at the same term as the judgment in the main case; and the previous order having been vacated at the succeeding term, no substantial reason is perceived why another or an amended application if deemed essential could not be filed, as was done in the case at bar, nor why the court would be without jurisdiction at that time to entertain and determine it. Upon the circumstances of this case we think the court had jurisdiction.
The statute expressly- authorizes the proper court or judge to make an allowance in favor of the sheriff for his actual and necessary expenses incurred in the taking, keeping or storing, maintaining or subsisting of any property when rendered necessary in the execution of his duties. (Rev. Stat. 1899, Sec. 1114.) The allowance is required to be made upon the affidavit of the sheriff or his deputy, or the under sheriff, showing in detail all items of expense so incurred, and that the same were actually or necessarily incurred in the particular case, though it is expressly provided that other evidence to sustain the claim may be required
The order of the court denying the motion of plaintiff does not state the particular grounds upon which it was
Although the plaintiff at whose instance an officer levies upon property under a writ of attachment is primarily liable to the officer for expenses incurred in keeping and maintaining the property pending the suit, such expense will eventually fall upon the debtor in case the plaintiff recovers in the action and obtains a sale of the property, since the officer may deduct such expenses from the proceeds before paying them over to the creditor, unless indeed the latter shall have previously paid them, in which case he may deduct the amount of such expenses from the proceeds before crediting them upon, the judgment. (4 Cyc., 721; City Bank v. Tucker, 7 Colo., 220; 3 Pac., 217.) The theory that in such case the expense falls upon the debtor rests upon the assumption that the property attached and sold belonged to the debtor, for it is evident that though the expenses be taken out of the proceeds of the sale of the attached property they would not come out of the debtor unless such property had belonged to him, or he had a sufficient attachable interest in the same to cover the amount. The earlier cases hold where live stock' is attached that the defendant is bound to support it and is responsible for such expense if judgment is rendered against him, and, further, that if such live stock should perish the loss would fall upon defendant in case of his failure to support the same after notice from the officer to do so. But that rule, it is evident,
It may be stated that had the property attached in this case been sold and the expenses of its maintenance paid out of the proceeds, the defendant would have had no cause of complaint, the property not being his. But it is well settled under such circumstances that the true owner in a suit against an officer for a conversion of the property cannot be charged with the expenses incurred in keeping the same while in the officer’s possession, for the obvious reason that the officer’s act in taking and keeping the property of some person other than the attachment defendant amounts to a trespass.
When an attachment suit is dismissed, the attachment discharged, or defendant prevails in the final determination of the cause, it is well settled that the officer has no lien upon the property or its proceeds as against the defendant, though the property be his, but in such cases the expenses of keeping the attached property fall upon the plaintiff. (4 Cyc., 722; City Bank v. Tucker, supra; Deering v. Wisherd, 46 Neb., 720; Snead v. Wegman, 27 Mo., 176; Ward v. Barnes, 95 Ga., 103; Schneider v. Sears, 13 Ore., 69 (8 Pac., 841); Alexander v. Wilson (Cal.), 79 Pac., 274; 1 Wade on Attachment, Sec. 181.) The manifest underlying principle in such cases is that because of the failure of the plaintiff to maintain his suit or attachment against the defendant and his lien upon the attached property there is no ground for requiring defendant to pay the expenses incurred in keeping- the property, but in such cases the writ liaving-been levied upon the property at plaintiff’s request he is not only primarily but ultimately liable to the sheriff or other officer for the expenses so incurred.
The rules above stated do not in terms cover the facts of this case. Here the property was not sold, the attachment
It is quite generally held that a motion to dissolve an attachment on the ground that the defendant has no interest in the attached property will not be sustained, for the reason that the seizure of property not belonging to the defendant can do him no possible injury. (4 Cyc., 775.) It is evident that the courts holding- to that doctrine have not supposed that a defendant could be personally charged with and required to pay the expense of maintaining- attached property not belonging to him, for should that be possible, he might be very materially injured by the attachment of such property.
In an early Maryland case assumpsit was brought by a sheriff against a party who had caused the issuance of writs of attachment and their levy on certain property in which defendant had no interest at the time the writ of attachment was issued. The suit was brought to recover for poundage and other fees due to the sheriff on the ground that the court had decided that the attached property did not belong to the defendant and was not liable to be condemned on the writs of attachment or any of them, but belonged to another who claimed it and to whom the fight of possession had been
In the California case of Alexander v. Wilson, supra, the suit was brought by an attachment plaintiff against the sheriff for damages resulting from the failure of the latter to sell under execution property previously held under attachment. The sheriff was held to have been justified in his refusal to sell by reason of the fact that the attachment had been levied against an insolvent defendant, who shortly thereafter was adjudged a bankrupt, whereupon, the attachment being void, the property had passed to the trustee in bankruptcy (77 Pac., 706), and in a later opinion (79 Pac., 274) the expense of keeping the attached property was held allowable in favor of the sheriff and against the attachment plaintiff. Thus in that case the attachment had not been formally dissolved, nor had the property been sold, but since, by virtue of the statute, the property, as of the date of the attachment, was to be regarded as belonging to the trustee in bankruptcy, and, therefore, not attachable against the defendant, the plaintiff was liable for the expenses of maintenance. The exact question before us was, of course, not there involved, but the case is one of several which, although presenting slightly different circumstances, illustrates the principle that should be applied to the facts in this case.
In order to charge the defendant with a personal liability for the expenses in controversy the plaintiff or the officer must have secured some substantial right against the defendant by reason of the attachment upon the property, or thereby obtained some lien upon the property for the satisfaction whereof the defendant would be responsible. That no .such right or lien is acquired, or at least preserved, where the attachment or suit has been dismissed, or the defendant prevails in the suit, is manifestly the fundamental reason for throwing the expense of maintenance in such cases upon the plaintiff, instead of the defendant. The same situation in effect exists where defendant is without an attachable
The argument that the court had no right to consider the ownership of the property, but was bound to treat it as belonging to defendant, is not tenable. The defendant had a right to oppose the attempt to tax the fexpense against him upon any existing ground not previously adjudicated against him. His lack of interest in the property was, therefore, pertinent to the inquiry suggested by the objections to the motion. Had the officer sought by independent suit to hold the defendant for these expenses, it would clearly have been competent in defense for the defendant to set up and maintain that his proprty had not been attached; and where it is permissible to have the expenses allowed and the liability of the proper party enforced in the suit wherein the attachment was levied, as we think it is by clear implication of our statute, and upon authority, the same objections must be held open to the party attempted to be charged, as though a separate suit had been brought. The chief point.involved in the Colorado case of Bank v. Tucker, supra, was whether such expenses could be enforced in the attachment proceeding against the plaintiff-, who was in that case the responsible party, and it was held that, though the officer might maintain a separate suit, he was not required to do so, but might present his bill in the attachment proceeding and procure an order allowing it, and that the amount so allowed could then be taxed and recovered as other costs of the suit. The same conclusion was reached in Mitchell & Lewis Co. v. Denning, 23 Ore., 448 (32 Pac., 394), where the suit had been dismissed. The court said: “The sheriff should, in such cases, be paid promptly for his service, and reimbused for such reasonable sums of money as he has been obliged to incur in the care of the attached property. The reasonableness of these charges should be determined by the court or judge
As we perceive no error in the record the orders complained of will be affirmed. Affirmed.