DeYampert v. Johnson

15 S.W. 363, 54 Ark. 165, 1891 Ark. LEXIS 23

• Court: Supreme Court of Arkansas
• Decided: January 31, 1891
• Status: Published

Opinion

Battle T.

1. Liability ¡j'?y lttaLed°p" When a valid order to attach specific property is delivered to the proper sheriff, it is his duty to seize the property described in the order and hold the same subject to the order of the court, or until the attachment is dissolved, or he is required by the statute to deliver the same to another person upon his executing a bond. He can use no discretion or judgment, and has no right to determine to whom the property that he is ordered to seize belongs. If he surrenders it upon a claim of right to the same, without authority of the court or parties concerned, or taking a bond as required by the statutes, he becomes responsible to the party aggrieved in a civil action for damages.

2. Burden of In actions like this the measure of damages is the actual injury sustained, the actual injury being so much of the debt as was lost by the misconduct of the sheriff. The breach of duty being clear, the burden of showing that he is not responsible for actual damages is upon the defendant. He can do so by proving that the cotton seized was not subject to a lien for rent, because it had been sold and was in the possession of a purchaser without notice of the lien before the action was commenced. But this is not sufficient to relieve him of all liability for damages, but only goes in mitigation.

In this action plaintiff had a legal right to have the cotton attached in a former suit held until it was released according to law. He claimed a lien on it as a security for the payment of his debt, and caused it to be seized in that suit for the purpose of having his alleged lien foreclosed. As to the existence, validity and extent of that lien, he was entitled to the judgment of the court in the action brought by him. He was entitled to have the cotton held for that purpose. The surrender of it upon the demand of a claimant was a wrong done to him, for which the defendants in this action are liable for nominal damages, it having been shown that no actual injury was sustained. Sedgwick on the Measure of Damages (6th ed.), pp. 50-51, 633-642; Rich v. Bell, 16 Mass., 294; Brown v. Richmond, 27 Vt., 583; Dow v. Humbert, 91 U. S., 294.

But this court will not remand a cause for new trial when it is apparent that the appellant cannot recover more than nominal damages. Buckner v. Railway, 53 Ark., 16 ; 3 Graham and Waterman on New Trials, 1356; Robertson v. Gentry, 2 Bibb, 542; Haven v. Beidler Mfg. Co., 40 Mich., 286.

3._Errorasto g<=s. But inasmuch as it appears from the pleadings and the evidence adduced by both parties that appellant is unquestionably entitled to nominal damages, the judgment of the court below will be reversed, and judgment will be entered here in favor of appellant against appellees for all costs that have accrued in this action in this and the court below; and it is so ordered.