Lick v. Munro

69 P. 285, 8 Idaho 510, 1902 Ida. LEXIS 35

• Court: Idaho Supreme Court
• Decided: June 10, 1902
• Status: Published

Opinions

QUARLES, C. J.

— This action was commenced by the respondent, as plaintiff, in the probate court in and for Boise county, to recover damages against the appellant as sheriff of Boise county for the unlawful seizure under execution and sale of certain chattels, to wit, twenty-four cords of wood, valued at eighty-four dollars, and for damages for retention of same in the further sum of fifty dollars; and upon trial in said probate court a judgment was rendered in favor of the defendant, from which the respondent appealed to the district court, and upon a trial de novo in the district court judgment was rendered in favor of the respondent for the sum of sixty-nine dollars and sixty cents damages, and costs taxed at nine dollars and ten cents. Both parties expressly waived a jury trial in the district court. Appellant moved for a new trial on numerous grounds, which motion was denied, and the appeal is from an order denying a new trial, and from the judgment.

One of the errors assigned and relied upon is that the lower court erred in holding that the plaintiff was not estopped from claiming said cordwood by reason of declarations, made by him just immediately preceding the seizure of said cordwood by the sheriff, to the effect that he had sold the property, and that said wood was the property of one John Eost. Said wood was seized by the appellant, as sheriff of Boise county, under an execution against John Eost. The admitted evidence in the case, and about which there is no conflict, is that within a few days of said seizure the respondent Lick stated to divers persons that he had sold said wood to the execution defendant, John Eost. The evidence also shows that said Eost had hauled a good portion of said wood from where it was cut to a point near Idaho City, from which latter point he was delivering it to customers. The respondent not only declared repeatedly that he had sold said wood to said Eost, but stated that he had done so at the price of one dollar and seventy-five cents per cord, and had also stated that he had sold it to said Eost because his wagon was not strong enough to haul same. The admitted evidence also shows that respondent, Lick, stated and declared to H. L. Fisher, the attorney for the plaintiff in the execution, four or five days prior to the levy thereof, that he had sold said wood to said Eost; and the evidence indisputably shows that the sheriff levied upon said wood as the property of said John Eost by direction of the execution plaintiff, after being informed of the said declarations of the respondent, Lick. Under the above circumstances we are of the opinion that the respondent, Lick, is estopped from asserting ownership in said cordwood as against the appellant sheriff and as against the execution plaintiff. It is evident that the plaintiff in the execution and the said sheriff relied upon and believed the said declarations of the respondent, Lick, and acted upon them. It is argued by counsel for respondent that respondent was under no obligation to tell the truth in regard to his ownership of said eordwoodThe law does not encourage fraud, falsehood, nor deceit. The respondent had no right, morally nor legally, to make false statements in regard to the ownership of the property in question, and deceive and mislead the appellant and the creditors of said John Rost to their prejudice and injury, and the law will not uphold him in so doing.

The judgment is against law and against the evidence, and the same should be reversed, and it is so ordered, and the cause remanded to the district court, with instructions to enter judgment dismissing said action. Costs awarded to appellant.

Sullivan, J., concurs.