Allen v. Ingalls , 33 Nev. 281 ( 1910 )

By the Court,

Norcross, C. J.

This is an action to recover a claim in the sum of $1,055 for services as keeper of certain attached property, levied upon by the appellant in a certain action instituted in the First (now Seventh) Judicial District Court in and for Esmeralda County, wherein Wood, Curtis & Co. were plaintiffs and J. W. Tracy was defendant. From a judgment for the plaintiff, respondent herein, for the full amount sued for, and from an order denying a motion for a new trial, the defendant has appealed.

The trial court found as facts that on the 23d day of March, 1908, in the case above mentioned, a writ of attachment was duly issued and placed in the hands of said sheriff for execution; that under and by virtue of said writ, on or about the 24th day of March, 1908, he took into his possession a certain store building, stock of merchandise therein, and certain other property, situate in the town of Lida, in said county; that at the special instance and request of the said defendant sheriff, made by himself and his agents, duly authorized, one E. D. Allen performed labor and rendered services as custodian of the property, attached as aforesaid, from the 16th day of April, 1908, to and including the 12th day of November, 1908, for which said services and labor the defendant agreed to pay the reasonable value thereof; that said services were reasonably worth the sum of $5 per day, or the aggregate sum of $1,055; that prior to the commencement of the action the said claim for services was, for value, assigned to the plaintiff. From these findings of fact the court found as a conclusion of law that the defendant was indebted to the plaintiff in the sum mentioned, and that he was entitled to judgment accordingly.

The proofs showed that when the writ of attachment was issued the defendant gave the same to one of his deputies residing in Lida, and that this deputy made the levy and for twenty days retained the attached property in his charge. On April 16,1908, the deputy placed the said E. D. Allen in charge thereof, as custodian or keeper, who remained in possession thereof until the 12th day of November, when upon the written order of the defendant he turned the property over to one W. E. Clark, trustee of the estate of J. W. Tracy, bankrupt; the said J. W. Tracy having been duly adjudged a bankrupt by the United States District Court at Carson on the 28th day of July, 1908, and the said W. E. Clark having by •said court been duly appointed trustee thereof on the 9th day of October, 1908.

It is the contention of appellant that the plaintiff was not entitled to recover for the following reasons: (1) That a deputy sheriff, without being specially authorized, cannot employ and contract for a keeper of attached property, so as to bind the sheriff. (2) Because the sheriff settled in full with his deputy for keeper’s fees to September 10, 1908. The further contention is made that, if the sheriff is liable at all to the keeper employed by the deputy sheriff, such liability would not exist after the 28th day of July, 1908, the day the said J. W. Tracy was adjudged a bankrupt.

We think the sheriff was bound by the acts of his deputy in the employment of the keeper. The deputy, by virtue of his deputyship, was authorized to employ, if necessary, a keeper for the attached property. Without determining to what extent a sheriff' may be bound by the contracts of his deputy in matters of this kind, it is sufficient, for the purposes of this case, to base the sheriff’s responsibility for the employment of the keeper upon the doctrine of ratification. The testimony is to the effect that the sheriff gave the writ of attachment to his deputy to execute the writ, without anything being said whatever regarding the employment of a keeper. The writ could not be executed without taking the personal property into the possession of the sheriff as commanded by the statute. The personal property attached, comprising a stock of merchandise, some lumber, hay, etc., it was necessary that there should be a custodian.

Unquestionably the deputy had power to do whatever was necessary to protect the property under the attachment, and if he had failed so to do the sheriff would have been responsible for any loss by reason of neglect. The deputy remained in charge of the property himself for about twenty days, when, having determined to leave the town of Lida, he placed the attached property in the care of Allen. Upon the same day the deputy testified he notified the sheriff of what he had done, and the sheriff expressed approval of his act. The attached property thereafter remained in the possession of Allen for several months with defendant’s knowledge, and was finally delivered by Allen to the trustee in bankruptcy upon defendant’s order to him. This was a ratification of the deputy’s employment of Allen, if such ratification was necessary.

Comp. Laws, 2242, provides: "Each sheriff shall have power to appoint, in writing, signed by him, one or more deputies, who are hereby empowered to perform all the duties devolving on the sheriff of the county; and the sheriff shall be responsible for all the acts of his deputy or deputies. * * * The sheriff may also require of' his deputies such bonds as to him shall seem proper. ”

The rule governing the responsibility of the sheriff to the custodian of attached property is stated in Cyc. as follows: "Ordinarily, when the sheriff appoints a custodian to keep and care for the attached property, he is liable, either under his express contract or for a reasonable compensation, and the custodian cannot look to plaintiff in the action, and in such an action against the officer it is no defense that he has no claim against another for the performance of such services.” (4 Cyc. p. 722.)

See, also, Chenowith v. Cameron, 4 Idaho, 515, 42 Pac. 503; Rowley v. Painter, 69 Iowa, 432, 29 N. W. 401; Hurd v. Ladner, 110 Iowa, 263, 81 N. W. 470; Lawrenson v. McDonald, 9 S. D. 440, 69 N. W. 586; Stowe v. Butterick, 125 Mass. 449; Jones v. Thomas, 14 Ind. 474; Edinger v. Thomas, 9 Colo. App. 151, 47 Pac. 847.

The rules governing the right of the sheriff to recover from the plaintiff in attachment suits are not controlling in cases of this kind. The sheriff may protect himself against possibility of loss on account of his necessary disbursements; but he cannot set'up any failure upon his part to take proper precautions as a defense to an action by his employee. It is well settled that the keeper, in the absence of some express agreement with the plaintiff in the action, cannot recover the value of his services from such plaintiff. Ordinarily, the keeper looks to the sheriff for his compensation, and the sheriff to the plaintiff for his fees and disbursements. In the absence of some agreement to the contrary, it is no concern of the keeper whether the sheriff is paid or reimbursed by the plaintiff for the keeper’s charges.

There was some evidence offered by the defendant sheriff of a settlement with his deputy for services of the latter as keeper to September 10,-1908. The amount paid the deputy was comparatively trifling, and was less than the proven value of his services for the time the property was in his care. That such a settlement, made without the knowledge of Allen, would not be binding on the latter, requires no comment.

The contention that, because the adjudication in bankruptcy operated to dissolve the attachment, therefore the plaintiff cannot recover from defendant for services as keeper after July 28, 1908, we think without merit. It is not contended that the defendant sheriff notified the keeper of any change in the status of the property, or that he would not, for that or any other reason, be liable further for his compensation as custodian. It may be that the defendant no longer could claim to hold the property, as sheriff under the attachment, but rather as bailee for the trustee in bankruptcy; but if he continued to hold it in the latter capacity that situation would not operate of itself, we think, to change the contractual relations existing between himself and the person he had placed in charge as keeper. The defendant had a right to demand and recover his expenses incurred in preserving the property either from the plaintiff in the attachment suit or partly from such plaintiff and partly from the trustee in bankruptcy, and he was bound to look to one or both of them for reimbursement.

Counsel for appellant has raised the further question that the contract with the keeper would be void, because the latter was at the time justice of the peace of Lida township. While, in the absence of examination, this contention does not impress as containing possible merit, we are not called upon to investigate and determine it, for the reason it is raised for the first time upon appeal.. This court has frequently determined that it will not consider questions, not jurisdictional, raised for the first time on appeal.

The judgment is affirmed.