Moores v. Winter

Hughes, J., (after stating the facts.) “Trespass is held to be the proper action against the sheriff for an injury done by his deputy to the person or property of another. And in trespass against a sheriff, in which he is declared against personally, and not as sheriff, it is held competent to prove that the defendant was sheriff, and that his deputy, as such, committed the trespass.” 2 Hilliard, Torts, p. 208, §21; Poinsett v. Taylor, 6 Cal. 78. “A sheriff is responsible for a trespass done by his deputy.” 2 Hilliard on Torts, p. 208, § 21. It is shown by the evidence that the common law of England prevails in Texas, under statute of that state; and, this being an action de bonis asportatis (Webb’s Pollock on Torts, § 421), it follows that the plaintiff had a cause of action at common law. Under the fi. fa. against Paulk the sheriff was a trespasser if he seized and sold the goods of Winter, the appellee, though assured that they were the property of the plaintiff. He could only take the goods of the defendant in the execution. Overby v. McGee, 15 Ark. 459; Oliver v. State, 17 Ark. 511. The appellee had the right to sue in trespass the person who committed the tort and those who advised or encouraged it, or to bring replevin for the property. Willis v. Reinhardt, 52 Ark. 128. For a common-law tort—which this is—a personal action may be maintained against the wrongdoer in any state where he is found and served with process. 2 Borer, Interstate Law, 198 to 203. This is purely a personal action, and is transitory. Webb’s Pollock on Torts, 239-240. We are of the opinion that when Tilson offered to file his answer, before the case went to the jury, he should have been allowed to do so, upon terms imposed by the court; and that when he made the refusal of the court to permit him to do so a ground of his motion for a new trial, and the court granted his motion for a new trial on condition that he should pay into court the costs of that term of court, the court exercised a discretion it possessed in refusing his motion unless he complied with the condition. Granting the motion would have necessitated a new trial, which probably would have caused costs to accumulate to an amount equal to the costs of the term at which the case had already been tried. The appellant, Tilson was in default for not having answered, and judgment went against him by default, or for want of an answer. The issues in the case were tried as to Moores and Payne, and all the evidence was heard as to the accrual of the right of action and the value of the goods taken by the sheriff. As to Tilson the judgment was by default, and the jury assessed the damages upon the evidence. The costs were ordered paid into court, and, had Tilson paid them, and had .there been no new trial, the court had the power to tax the costs, and distribute properly the money paid in, and would doubtless have done so, causing Tilson to pay his costs of the 1 term only. There was judgment against Moores and Payne. We therefore think that no reversible error appears in this. Costs may be required to be paid, as a condition to the granting of motion for a new trial, but the costs only caused by the defendant or party granted the new trial on such condition should be exacted. Brooks v. Hanauer, 22 Ark. 174. The appellant insists that the two-years statute of limitations of Texas bars this action. The action was brought after two years had expired from the date of the trespass, and; had it been brought in Texas, where the trespass was committed, it would have been barred under the Texas statute of limitation. But the action was brought in Arkansas, where the plaintiff had his residence, and had been a citizen for twenty years, and within three years after the cause of action accrued. “The recovery .must be sought and remedy pursued within the time prescribed by our own law—the lex fori—without regard to the place where the cause of action or its merits originated.” Blackburn v. Morton,18 Ark. 384, 395. “When, however, the action is for a tort at common law, the statute of the forum governs.” Rorer, Interstate Law, 232; Nonce v. Richmond & D. R. Co. 33 Fed. Rep. 429; Cooley on Torts, 470; Dennick v. R. Co. 103 U. S. 11. The merits of a cause are determined by the law of the place where it arose; the mode of procedure and remedy by the law of the forum or place where the action is brought, including the statute of limitations. The evidence shows that the appellee was a citizen of this state when he brought this action, and had been for twenty years. If the two years statute of limitations of Texas could be said to have extinguished plaintiff’s right of action in that state, it could have no such operation in this case, as it is only when the parties to the action reside in the state where the law extinguishes the cause of action during the full period of limitation, so that it has actually operated on the parties and on the ease, that the statute of limitation can be pleaded in bar of an action in a foreign jurisdiction. Story, Conflict of Laws, p. 578; FinnellY. Southern Kan. R. Co., 33 Fed. Rep. 427 (opinion by Judge Thayer.) To sustain an action of trespass vi et arrms, it is only necessary to show that the plaintiff had possession of the goods, or a general or special property in them, and á right to the immediate possession. Huddleston v. Spear, 8 Ark. 406; Warner v. Capps, 37 Ark. 32. Appellant contends that there was no proof showing the value of the property taken by the deputy sheriff. We think there was. It was shown that the deputy sheriff gave receipts showing the articles taken, and the value of each, amounting in the aggregate to $358.25. Casteel, a witness for appellant, estimated the value of the articles taken to be $210. which, with interest to the date of the trial, would have amounted to about $240. The judgment was for $298.52. We think the evidence was competent, and was for the jury, and we cannot disturb the verdict. The judgment is affirmed.