Richardson v. Bamberger, Bloom & Co.

3 Ky. Op. 530, 1870 Ky. LEXIS 182

• Court: Court of Appeals of Kentucky
• Decided: February 12, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

It was appellant’s duty as sheriff of Meade county to execute all legal precepts and process directed to him to execute, with diligence and reasonable promptness, and to enable him to discharge these duties he should have as many deputies as such business would require. And it is the duty of the sheriffs also to apply to the offices of the clerks of the county and circuit courts of their respective counties for precepts directed to them to execute, as frequently as the ordinary business transacted in said offices may require, but' it would be very difficult and impracticable to prescribe how often each day (Sundays excepted) such applications should be made, depending somewhat upon the approach of a circuit court, the usual amount of litigation in the county, etc.

In this view of the case no objection is perceived to instruction No. 1, giving on motion of appellees.

But the second instruction is objectionable. What meaning is to be attached to the expression,

“It is no excuse for his failure to levy said process without delay that he had in his hands other papers of a less summary character”

the jury might not readily have comprehended. We must, however, presume that the court intended by the terms “a less summary character” a particular character of process which did not require as much dispatch, and the necessity for its execution as pressing as the attachment of appellee’s, and while the jury may, and we may assume did, so understand the instruction, still it was erroneous, in not explaining to them what papers, if the sheriff had such, “were less summary,” instead of making them the judges of the character of such papers and process as required the more prompt action.

By another instruction the jury were told that the criterion of damages, if they found for appellees, was the value of the property which Wolf had, less the cost of removing, taking care of, etc., and still when appellant offered to prove the probable cost of removing and taking care of the same, the evidence was objected to and the objection sustained by the court, this was also erroneous; the evidence was material and competent and should not have been refused.

Walker, for appellants. Farleigh, Alexander, for appellees.

Wherefore, the judgment is reversed and the cause is remanded for a new trial and for further proceedings consistent herewith.