Hesser v. Johnson

Opinion of the court by Buewell, J.: Ferdinand Westheimer & Sons, a partnership, duly obtained a judgment in the probate court of Payne county against B. J. Bost, Charles Vickers and James Bitchey, partners as B. J. Bost & Co., for $274.00. Execution was issued and placed in the hands of the sheriff, who executed it by levying on certain personal property at the residence of and in the possession of one W. H. Johnson. The sheriff then loaded this property in a dray and hauled it away. Immediately thereafter, the sheriff went to the cold-storage room of Fred M. Stallard, located a short distance from Johnson’s residence and levied on a barrel of whiskey and hauled it to the same place where he had stored the other goods. Johnson claimed to be the owner of the whiskey and the goods seized at his residence. All of the property was embraced in the one return of the sheriff. Johnson then *749 commenced an action in the justice’s court for the whiskey, and another action for the other goods. By separating these actions in this way the jurisdiction was within the justice’s court, but by combining all in one suit the amount was greater than one hundred dollars, or the justice’s jurisdiction. The defendants, appellants in this court, insisted that the seizing of this property by .the sheriff under the execution, even if wrongful, constituted but one tort, and therefore only one action could be maintained. These objections (the facts upon which they were based being admitted) were overruled, trials had and appeals taken to the district court; and, after trials there, both cases were appealed to this court. We think the defendant was correct in his position. The property was all taken under one execution, and, in law, under the facts of this case, if the taking was wrongful, will be treated as one continuous tort. Therefore, Johnson can maintain only one action for the value of the property. The mere fact that the case was finally tried in the district court does not change the rule, as it only acquired appellate jurisdiction. The facts in this case are identical with those in the case of Ferdinand Westheimer & Sons v. W. H. Johnson, decided at the last term of this court, and the rules therein announced are here followed. This ease is here reversed, and remanded with directions to the district court to dismiss the cause of action without prejudice at the cost of appellee, W. H. Johnson. Paneoast, J., who presided in the court below, not sitting; Burford, C. J., absent; all the other Justices concurring.