State ex rel. Barnett v. Dalton

Woods, J., delivered the opinion of the court. We fail to discover an}? merit in the position of the appellees, as to the supposed interference of the appellant, or his [617] agent or attorney, in the matter of the appointment of the deputy, Kimball, and the consequent release from liability of the sheriff' because of the alleged negligence of this deputy. It is not unreasonable intervention for the plaintiff in a suit to express a desire to have some one levy the process, and discharge other duties imposed by law upon the sheriff, who is familiar with and competent for such official work. Not only is this not such intervention in the discharge of the sheriff’s duty" by a party litigaut as will relieve the officer from liability, but it seems only the usual and natural effort of the party litigant to quicken the diligence of the official, and to promote the faithful performance of his duty. It is equally certain, however, that there was not that want of care, in the dealings of the sheriff with the goods, which will render him and the sureties liable for the loss sustained in the destruction of the store-house and its contents. The reasonable care which was the measure of the officer’s duty, did not necessarily require the immediate removal of the goods from the house where they were found, when levied upon, to the county site, or elsewhere; and it is not made clear that the removal to Millican’s store-house would have rendered the goods more secure than in the Maxwell storehouse. The plaintiff’s agent thought the latter store-house reasonably safe, for the-goods were to be left there, without any thought or suggestion of probable loss in so doing, at this agent’s request, from Saturday until the Tuesday or Wednesday following. Millican, too, said on trial that Maxwell’s store-house was as secure as his, in so far as danger of loss from burning went; and, undisputábly, the loss complained of resulted from burning. The action of the court in permitting to appellee a fifth peremptory challenge was erroneous, but the error is not reversible. The plaintiff, as has long been held in this state, had no vested right in any particular juror. lie had a right to an impartial j ury, and this right seems to have been enjoyed by him. We decline, moreover, to reverse, because an [618] other trial, properly conducted, could only result in a judgment for the appellees, on the evidence before us. Affirmed.