ADAMS V. SPANOLBR.
(Circuit Court, D. Colorado.
Motion for a new trial in a case tried before the diRtrict judge. will he heard by the circuit judge only on the request of the furmer, and nut as a matLer of right tu the unsuccessful party.
OFFICER-RESPONSIBILITY OB', IN EXECUTING PROCESS.
The rule is that the sheriff to whom a valid process is issued is hound to exercise ordinary skill and diligence in its execution, and in case of his neglect in this regard is liable for any d'lmnges which the party in teres led may have sustained in consequence of such neglect.
In case uf an attachment placed in the hands of a sheriff to levy, it is not the exercise of ord nary diligence for the she it! to take the representation of the defendant in ai tachmenL as to the value of goods seized thereunder. And in such case, when it appears that. here were in the po ·session of deft'ndant goodE' amply sufficient to satisfy the sum na-ned in the attachment, and the sherif!, upon the representation of defendant, fails to levy upon a sufficient quautity, he will be held responsible for sucll failure.
The rule in federal courts is that if the court be of opinion that, upon the evidence as it is presented, a verdict one way or another w"uld have to be set aside on molion for new tr,al, on the ground that it is not supported by tlle evidence, the court is not bound to submit tbe question to t.he jury. but may charge the jury in accordance wit h the view the court takes of the proof The court is not hound to go through the form of suhmltting a case to the jury, When satisfied in advance that in case the jury find one way the verdict w,1l be set as:de.
S.UIE-MEASURE OF DAMAGES.
In snch case, when it appears that t.he defenrlant in attachment is insolvent, the measure of damages will he the ditIere:lCe between the amount named in the attachment, willi costs. and th" amou"t reali,ted from sale of the toods seized-Ule actual damage sllsta,ned.
On 'Motion for Trial. lV. S. Decker, for plaintiff. lVells, Smith J: .lfacon, for defendant. 'McCRARY, J., (or.llly.) This case is before the court upon a motion for a. new trial. The was brought by plaintiff against the sherIff recover for the allegE'd neglect of the sheriff in making a levy by of a writ ')f attachment sued out by the plaintiff. The allegatIon is that the sheriff failed to levy upon sufficient property to pay the debt. The case was tried before t.he district judge and a jury, resulted in a verdict for the plaintiff. At the request of the distnct judge, the motion for new trial has been heard by the full bench. I mention this lest counsel might fall into the misapprehension that motions of this character are heard by the circuit judge as a matter of course. It is only when the district judge requests it that they are heard; if it were left to counsel, every case tried before the district Judge would have to be reheard. The question in this case was, whether the sheriff was negligent.
lFrom the Colorado Law Reporter.
It appears that when he received this writ the defendant in the at· tachment was in possession of a stock of 'goods amply sufficient to pay the entire of the plaintiff. When the sheriff or his deputy went to make the levy, being himself ignorant of the value of ,such goods as. those in the possession of the defendant,he made some effort to inform himself with respect to their value; he sent for a person who was supposed to be an expert upon the subject, and was not able to find him. Upon his failure to obtain the advice of this particular individual, he contented himself with such information as · he was able to obtain from the defendants in the attachment themselves, and relied upon their representations, and upon the invoices of the goods which they submitted to him. The goods taken mider · the writ sold for something over $200, I think, whereas the debt amounted to some $900 or $1,000; and in the store, it is admitted, were goods of sufficient value to have paid the entire debt. As to the law which governs a case of this sort, there is not room for much controversy; indeed, there is no real difference between the counsel for plaintiff and the defendant. The rule is laid down by & Redfield on Negligence that n; sheriff to whom a valid process is issued is bound to exercise ordinary skill and diligence in · its execution, and for any neglect to exercise such skill and diligence, ,is liable for any damages which the creditor named in the process may have in consequence sustained. Inother words, what is required of the officer is the exercise of ordinary care and diligence-such care ,and diligence as a man of common prudence would exercise with reJgard to his own private affairs. He is not responsible for the use of ·more than ordinary diligence. Admitting this to be the rule, the difference between the counsel arises here upon the question whether, was authorized to say that upun the evidence in this case, the the sheriff was guilty of negligence, or was bound to submit the question to the jury. In view of the facts which I hlwestated, I think it will appear clealoly enough that the sheriff did not exercise ordinary care and prudence, and that the court was authorized so to say to the jury. The rule which prevails in the federal courts upon that subject is this: If the court is of the opinion that, upon the evidence as it is presented, a verdict one way or the other by the jury-a ver· ,dict, for example, for the defendant in this case-would have to be set _aside upon a motion for new trial, upon the ground that the evidence · does not support it, in such a case the court is not bound to submit the question to the jury, but may charge the jury in accordance with · the view the court take,S of the proof. We are not required to go .through the form of submitting a case to the jury, if we are able to say in adnl.l1ce that, in case the jury finds one way, the court will set . aside the verdict. Nowit is laid down, in the same authority that I have quoted, that, where the debtor has sufficient property to satisfy the writ, it is negligence in the sheriff not to levy upon sufficient to satisfythe.,writ.
rnest'imating the he should use a 'sound and is not liable if it turns out to be insufficient. But is it the exercise of a sound discretion, is it the exercise of ordinary prudence and care, for the sheriff to submit the question to the debtor, the defendant in the' attachment suit, and be governed by his opinion, and such information as he gets from him with respect to the value of the property? I think most clearly not; and as that is all, according to the testimony in this case, that the sheriff did in his endeavors to ascertain the value of the property, we are bound to say that the case falls clearly within the doctrine that I have announced, and that the evidence shows that ordinary care and prudence were not exercised; and if the jury upon such evidence had found for the sheriff, the court would have been obliged to set the verdict aside. There is one other question in the case, and that is as to the measure of damages. The court instructed the jury that, upon the issues in this case, if they found for the plaintiff, they were bound to find for the difference between the amount of his judgment and the amount realized upon the property which was seized under the attachment; it being a conceded fact that there was property in the store at the time the levy was made, if it had been taken'upon the writ, to pay the entire claim. There is in the books some conflict upon the question as to the measure of damages in such a case. In some states it is held that the plaintiff is prima facie entitled to recover the difference between the amount realized on ,the property levied upon and the amount of the judgment, with interest and costs, without showing that the defendant iri the attachment and in the judgment was insolvent, and that nothing can be realized by a gen-, eral execution. In other states it is held that if it appears that the money could be made by another writ, that the measure of damages is the actual damage which results from the delay, costs, etc., which would be involved in the pursuit of the remedy. It is not necessary in this case to determine which of these rules is the correct one, because 'we are very clearly of the opinion that, under the admissions of the answer in this case, the charge of the court was correct. The answer admits that at the time of the delivery of the writ of fieri, facios, in complaint mentioned, to this defendant, the said Dufur, Coffin & Co., (who were the debtors,) had at said cOllnty of Arapahoe no lands, tenements, goods, chattels, or effects liable to execution, sa,e the goods, wares, and merchandise so as aforesaid levied upon ancl taken by virtue of said writ of attachment as in the complaint mentioned. It is suggested that this is not an admission that these defendants were insolvent, but we think it is ,ery clearly. The terms ''In:nds,, tenements, goods, chattels, and effects," coyer and embrace all kinds. every character of property, and if the defendant has neither heIS certainly insoh·enL. It is true that this allegation relates to the. time when the executIOn was deliyered to the sheriff, which, of course,·
WitS a period somewhat later than the day of the levy of the aHach. IDent; but the court will presume that if they were entirely insolvent at the time of the delivery of the execution, they were so at the time of the issue of the attachment. At all events, the allegation is sufficient to shift the burden, and to make it the duty of the defendant to show that the defendants in the attachment were solvent, and that the money could have been realized. It follo'ws that the motion for It new trial must be overruled.
CHICAGO, D. & Q. R. Co.
(Circuit Court, D. Iowa.
RULROAD-CODE, IOWA, § 'ro CmLD. ,.;('ct ion 12139 of the Iowa Codc of 1873, providing that" any corporation
operating a railway, that fails to fence the samc against live-stock at large, at all points where such right to fenee shall be liable to the owner of anv stoel, injured (lr ki.led by reason of the want of such fence, or for the value' of the property or damage caused, unless the same was occasioned hy the willful act of tile owner or agent," does not impose on such ra.lroad corporation the absolute outyof fencing, and it wiil not be liable for an injury caused to a child re:lson of the ausence of a fellce alone, no other fault or negligence bemg charged
At Law. 1'. C. Whiteley and Nl'w1n(ln cf: Blfl7..e, for plaintiff. P. Henry Smyth and H. H. Trimble, for defendant. MCCRARY, J. Where the statute imposes upon a railway company the duty to fence its track, it may well be claimed tllat the neglect of that dutyis negligence, for all the consequences of which the company would be liable; and snch being the rule, it might be contended, with much force of argument, that the company would be liable for an injury to an infant child caused by the absence of such fence, notwithstanding the fact that the purpose of the statute may have been to prevent injury to live-stock. It is not, however, necessary in the present case to consider these questions, for we are of the opinion that the Iowa statute did not impose upon the defendant the duty of fencing its track. The statute provides as follows:
"Any corporation 0pflfating a railway, that fails to fence the same against live-stuck running at large, at aU points where such right to fence exists, shall be liable to the OWller of :lny such stock injured or killed by reason of the want of such fence, or for the value of the property or damage caused, unless the same was o("casioned by the willful act of the owner or his agent; and in urder to recover, it shall only be necessary for the owner to prove the injury or destruction of his property. Ami if snch corporation neglect to pay the value of, or damage done to, any such stock, within thirty days after notice in writing. accolllpanieu by an altidavit of such injury or destruction, has been served, * * * snch owner shall be entitleLl to recover double the value of the stock killed or damages caused thereby," etc. CoLle of 1873, §