Tatham v. . Dehart

Walker, J. It is stated by the plaintiffs in their brief, and was repeated in the argument before us, that the court directed a verdict on the first three issues, and required the jury to assess the damages against the plaintiffs under the fourth issue, because the plaintiffs had misconceived their remedy. That they could not proceed by- an independent action against the defendant as for a conversion of the property, but that their only remedy was by intervention in the original action in which the warrant of attachment had issued. If-this was the ground of the *659 decision, there was error, as in such a .case the party whose property is wrongfully attached may recover his damages for the seizure and conversion by a separate action against the wrongdoer. 35 Cyc., pp. 1818 and 1830; Cooley on Torts (3 ed., 1906, by Lewis), pp. 778 et seq.; Gay v. Mitchell, 146 N. C., 509; Martin v. Buffalo, 128 N. C., 305; Murfree on Sheriffs (Ed. of 1884), sec. 925. Judge Cooley, in his treatise on Torts, at p. 778, says that “wrongs by a sheriff to others than the parties to suits are generally a consequence of his mistakes or his carelessness. Thus, he may on an execution against one person, by mistake, seize the goods of another. He must, at his peril, make no mistake here.” In this case, for example, the process of attachment authorized him to levy upon and seize only the goods or property of the defendant in the attachment suit, and not that of a stranger to the same, and when he levies and takes into his possession property not subject to seizure under the process, as in this case, when it belongs not to the defendant but to another, he subjects himself to an action for the wrong. He must be careful to see that he acts under the process and within the authority it confers. Cooley, swpra. Gay v. Mitchell, supra, is an apt illustration of the principle. The sheriff held an attachment against a defendant therein, and levied it on property not belonging to that defendant, but to the plaintiff, and took possession of it. An action was brought by the owner of the property against him to recover damages for the conversion, and for injury to the property, which was machinery, by the freezing and rusting of the pipes and tubes and other parts, which could have been prevented by the exercise of ordinary care. This Court held that “on the testimony, if believed, an actionable wrong was undoubtedly established, .and, under the charge of the court, the jury properly awarded the actual ■damages, which were the natural, probable, and direct result of defendant’s wrong,” and further said, “We do not well see how any other verdict could have been rendered.” That case is much like ours, for there the attachment was issued and the levy and seizure was made under and by virtue of it, and there was no suggestion or intimation by the court, and no contention by the defendant, that the plaintiff should have proceeded by intervention in the attachment suit, and could not sue independently of it. We .are not deciding whether the plaitiff could have resorted to an intervention, or interpleader, but whether he is compelled to do so, or can sue the sheriff directly for the wrong, as he would any other tort feasor. The plaintiffs contend that there is the following objection to the judgment, which we state in their own language: “The court erred in rendering the judgment that it did. The judgment provided that the defendant DeHart have and recover of the plaintiffs the sum of $3,000. At the most, the defendant DeHart would be entitled to recover only *660 sucb amount not exceeding $3,000, as tbe plaintiff Bowman might recover of tbe defendant Coley in tbe Cherokee County action. Under tbe judgment as it stands, DeHart can issue execution and recover tbe full amount of tbe judgment without regard to tbe result of tbe other action, and without regard to tbe fact that be is bolding this property only as sheriff, and as tbe legal custodian in tbe attachment proceeding, instituted by Bowman against Coley.” Tbe answer to this objection is that as tbe defendant recovered judgment for tbe value of property held by him under tbe attachment, tbe money, which represents that property, would be held by him instead of it, and in tbe same plight and for tbe same purpose as tbe property would be if be still held possession of it. He certainly would not recover tbe damages for tbe purpose of appropriating them to bis own personal use, but subject to tbe process of attachment which was issued to him from tbe court. But when tbe case is again tried upon tbe evidence and tbe proper instructions, tbe question last considered, and all others which may be raised by tbe parties, will be determined and tbe appropriate judgment entered in tbe case. It-is not necessary, if it would be proper, for us to now discuss them, as we cannot well anticúate in what precise form they will be presented. Tbe case has not been tried by tbe jury upon tbe evidence, as tbe verdict was a directed one. There was error in tbe charge of tbe learned judge, which requires that another trial be bad. New trial.