Work Bros. v. Kinney

71 P. 477, 8 Idaho 771, 1902 Ida. LEXIS 77

Opinions

QUABLES, C. J.

— This action was commenced on the 13th of February, 1891, against P. H. Kinney, sheriff of Alturas county, and fourteen sureties on an official bond given by him as such sheriff on the sixteenth day of January, 1899. A number of the sureties died during the pendency of the action, and for this reason, and other causes, the action was dismissed as to all of such sureties except the respondents S. J. Friedman, Charles Knaupp, John Murphy, C. J. Johnson, Charles J. Sherry, and Frank C. Coolidge. The plaintiffs, who are partners and merchants, had, prior to February 9, 1888, sold merchandise to one Warren P. Callaghan. The latter being indebted to them, they commenced an action in the district court, Alturas county, on the ninth day of February, 1888, to recover the sum of $1,685, with interest thereon, from said Callaghan, and in said action sued out and obtained a writ of attachment to secure said amount, and placed said attachment in the hands of the respondent Kinney, as such sheriff. Acting under said attachment, said Kinney, as such sheriff, seized and levied upon a stock of merchandise of the value of over $4,000, and afterward, without execution or due authority, sold said mer ehandise, leaving sufficient in his hands to satisfy the debt of the appellants. On the second day of October, 1889, the appellants obtained judgment against said Callaghan for their said debt and interest, and obtained an execution, and placed the same in the hands of said sheriff, who afterward returned the same “No property found.” Said Kinney executed the bond sued on as sheriff for a term of office commencing the second Monday of January, 1889, and ending the second Monday of January, 1891. He had been sheriff of said county for the two preceding years, and had executed a bond, with sureties, for said two preceding years. The real defense pleaded in the answer is one of estoppel. The complaint in this action alleges: “9. On information and belief, that on or about the first day of April, 1888, the said Kinney, as such sheriff, had and held in his possession, taken and attached by virtue of said writ of attachment, personal property belonging to said Callaghan not exempt from execution, and not encumbered by a.ny lien prior to the lien of said attachment, of great value, to wit, of the value of $4,000; and.that afterward, to wit, about the first day of May, 1888, said Kinney, as such sheriff, sold and disposed of the said personal property of said Callaghan for about the sum of $2,000, and that the said Kinney kept and retained the proceeds of such sale until after the fourth day of October, 1889, when he, as such sheriff, wrongfully converted the proceeds of such sale to his own use, and has wholly and wrongfully refused, and now refuses, to apply the proceeds of such sale, or any part thereof, to the satisfaction of said judgment or writ of execution, and that no part of said judgment has been paid.” The answer traverses some of the allegations of the complaint, and then alleges as follows: “And these defendants allege that since the commencement of this action and since the filing of their several answers herein the plaintiffs herein have recovered a judgment in this court against the defendant Kinney, sheriff, etc., and certain sureties on his official bond as sheriff, etc., for the same cause of action as is alleged and set forth in the complaint herein; which judgment is of record in this court. That the plaintiffs have refrained from and refused to enforce said judgment against any of the judgment debtors in said judgment, and have not sought in good faith to collect said judgment, or any part thereof. That heretofore, to wit, on the fifteenth day of February, 1890, the» plaintiffs herein commenced an action against the defendant P. H. Kinney and certain sureties on the official bond of said Kinney as sheriff for the term ending with the end of the year 1888, in which said plaintiffs filed a complaint, verified and sworn to by S. B. Kingsbury, as their attorney, in which, among other things, they alleged as follows: That on or about April 1, 1888, the said Kinney, as such sheriff, had and held in his possession, taken and attached by virtue of said writ of attachment, personal property of said Callaghan not exempt from execution, and not encumbered by any lien other than the lien of said attachment, of great value, to wit, of the value of $4,-000, and that afterward, and on or about May 1, 1888, said Kinney wrongfully sold and disposed of and converted said property to his own use, and did not hold said property under said writ of attachment in order to satisfy said claim and judgment; but converted the same to his own use, and wrongfully used and converted the proceeds of said sale to his own use and advantage, to the great damage of the plaintiffs, to wit, to their damage $4,000. That in said action they took a judgment in accordance with the allegations in said paragraph 9 of said complaint, and these defendants allege that the plaintiffs in this action are, and ought of right to be, estopped from asserting,- or pretending, or claiming, or giving any evidence -to the contrary to the facts as in said paragraph 9 in said complaint set forth and contained. That the pretense and assertion that the defendant Kinney had money in his hands as sheriff at any time during the year 1889, is directly in contravention of the facts as stated in said paragraph 9 of said complaint, which the. plaintiffs ought not 'to be heard to assert in this action.”

It will thus be seen that the defense is that the conversion complained of in this action, the wrong and the tort, was committed in 1888, during a former term of the said sheriff, and that the appellants had alleged said facts in a suit against said sheriff and his sureties on his former bond, and that the appellants had obtained an adjudication of such facts, and should not now be permitted to allege a different state of facts. It is difficult to conceive how said sheriff could, in 1888, “wrongfully use and convert”' said attached goods to his own use, and wrongfully use and convert the proceeds of the sale thereof to his own use, and fail to keep said property under attachment to satisfy the appellants’ claim, and then be guilty of converting the proceeds of such sales to his own use in 1899. If the allegations contained in the first suit against Kinney and his sureties on the bond given for 1887 and 1888 be true, we do not see how the sureties on the bond sued on can be held liable. The sureties on the bond sued on stand upon the conditions and terms of their bond. They did not undertake to answer for any wrongful acts of said sheriff in the past, but only for those in the future during the new term of office for which he was then qualifying. Having wrongfully sold the attached goods in 1888, and having converted the proceeds of such sale to his own use in May, 1888, we do not-see how the sureties on the bond sued on can be held liable.- But the able counsel for appellants insist with much learning, force, and eloquence that the sureties on the first bond were liable, because said sheriff sold without authority, and that the duty to hold the proceeds to satisfy any judgment recoverable against said Callaghan by appellants was a continuing one, and that until the judgment was obtained by appellants and an execution issued thereon and placed in said sheriff’s hands he could not be charged with a violation of this continuing duty. In other words, that the sureties on the first bond were liable because he sold the at (ached goods without authority of law; the sureties on the last bond — the one sued on here — are liable because he did not continue to hold the moneys realized from said sale, and pay and apply same on the execution when it was placed in his hands. We do not see how there can be more than one conversion of the same goods by the same party. The sheriff, who is rightfully in possession of goods, having seized them under a writ of attachment, wrongfully sells them, and converts the proceeds of the sale of same “to his own use and advantage” in May, 1888. It seems enigmatical and paradoxical to say that he does the same thing in 1889. Having alleged these facts, and by reason of such allegation and proof sustaining same, and having recovered a judgment against the sheriff and the sureties on his first bond, we think the defense of estoppel a good one, and that by their own acts, declarations, and conduct appellants should not now be heard to say that this wrongful conversion complained of did not take place in 1888, as alleged and proved in the first action, and there adjudicated. To our minds, this question of estoppel is conclusive of the present controversy. Having wrongfully sold the attached goods, as sheriff, in 1888, and having converted the proceeds of the sale of such goods “to his own use and advantage” in May, 1888, thus leaving nothing in his hands out of which to satisfy the execution in favor of appellants (afterward placed in his hands), the sureties on the bond sued on cannot be held liable for such wrongful conversion. The sureties here did not undertake to answer for any wrong committed by the sheriff under his former administration. We are unable to appreciate the fine, if not doubtful, distinction sought to -be drawn by the able counsel for appellants between the present case and that brought by appellants upon the former bond upon this identical cause cf action. To say that the sureties here' are liable because the sheriff failed to continue to hold property, or the proceeds thereof, which he had converted during his prior term of office, would be tantamount to holding that the sureties on the bond sued on are liable, by reason of such bond, for the delinquencies and defalcations of said sheriff under Ms former term.

A careful scrutiny of the evidence convinces us that the sheriff did unquestionably convert the attached goods and proceeds thereof to his own use prior to the execution of the bond sued on in this action. It is true that under the law it was the duty of the sheriff to continue to hold such proceeds subject to the orders of the court, and the same should have been in his hands at the end of the first term and at the time of the execution of the bond sued on in this action; and, if this condition had existed, and the appellants had not estopped themselves, by Teason of their allegations and proofs, and the adjudication brought about by them in said other action, the sureties here would undoubtedly be liable to the appellants in this action. The question as to whether or. not the conversion of the proceeds of the sale of said attached property was converted to his own use and advantage by said Sheriff Kinney before or after the execution of the bond sued on here was so clearly submitted to the jury for hheir determination by the instructions of the trial court that there can be no doubt that in finding for the defendants (respondents here) the jury found, and were justified in finding, that the proceeds of the sale of such attached property were converted by said sheriff to his own use and advantage in 1888, and that the same were not in his hands at any lime after the execution of the bond sued on by the respondents. There is some conflict in the evidence, but we think the preponderance clearly against the appellants, and that upon the evidence this court should not be authorized in disturbing the verdict of the jury. As hereinbefore said, the declarations of the appellants in their complaint in said other action, and the judgment which they obtained therein against the sureties on the former bond, estops the appellants from taking a position in this case directly antagonistic to that taken in the former action. This question of estoppel conclusively precludes appellants from recovering upon the bond sued on here.

Appellants have assigned, in their brief and bill of exceptions, a great many errors, fifty in number, occurring during the trial of the cause in the district court. In our. opinion, it would consume too much time and space to consider these assignments of error seriatim, and we think it unnecessary so to do. Many of the assignments of error relate to the introduction of evidence. A few general observations will suffice. Appellants objected at the trial to the introduction of the record in the former case. The acts and declarations of parties against their own interests, whether made in court or not, are admissible against them. Those which are self-serving or in the interest of the parties making them, are not admissible. The respondents introduced at the trial and were permitted to read a portion of the opinion of this court upon appeal in said former action. This was error. But we do not think that this error brought about the verdict complained of, and a careful study of the iecord convinces us that the verdict would not have been differ ent from what it was if the trial court had, as it should have done, excluded said opinion of this court. This error will not justify a reversal, in our opinion, as it did not affect the substantial rights of the appellants, who are estopped by reason of their acts and declarations in the action against the sureties on the former bond, as hereinbefore said and reiterated. • We have carefully considered the record in this case, and have read and reread the able and very interesting brief of counsel for the appellants, and have considered with much interest all of the authorities cited on behalf of the appellants, and notwithstanding we see no good reason for reversing the judgment in this case. A review, in this opinion, of the authorities cited, many of which are not pertinent to the real merits of this case, we deem unnecessary.

(February 9, 1903.)

For the foregoing reasons, the judgment is affirmed. Costs awarded to respondents.

Sullivan, J., concurs. Stockslager, J., while sitting at the hearing, took no part in the deoision.