Blewett v. Miller

SMITH, C.

The appeal is from a judgment in favor of the plaintiff and from an order denying the defendants’ motion for a new trial; but the only point made by the appellants’ counsel, and the only point that need be considered, is that a new trial should have been granted on the ground of newly discovered evidence.

The defendant Warfield is sheriff of Merced county, and, it is found, seized under attachment certain property of the plaintiff’s intestate that was exempt from execution—namely, a harvester and five gang-plows. The other defendants are the sureties on his official bond. The suit was brought to recover damages for this talcing. The court found that the harvester was - at the time of the taldng of the value of one thousand dollars

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and the plows of sixty dollars, and gave judgment for the aggregate amount, with legal interest from the time of the taking. It appears from the affidavit of Warfield that at the sale of the property levied on by him—consisting of the property in controversy and twenty-three mules and other property—the ■whole of the property was sold to C. F. Blewett (plaintiff in the attachment suit), for the sum of seven hundred and fifty dollars, who on the same day sold the same to the plaintiff’s intestate for the sum of eleven hundred dollars, and that the mules alone were worth more than that sum. Had this fact been known at the trial the result must have been different; for the plaintiff—his intestate having recovered the property—was not entitled to recover its full value. The rule is that “where one recovers his property again which had been unlawfully taken from him, he is considered as having received it in mitigation of damages”; and the measure of damages, in the absence of special damage, is the expense of procuring its return (with interest). (1 Sutherland on Damages, 239; and see 3 Sutherland on Damages, 527; and to same effect 1 Sedgwick on Damages, sec. 58.) The rule applies generally without regard to the means by which the return is secured, whether by purchase or otherwise. “Thus when plaintiff’s property was seized and sold by the defendant [a sheriff], and was repurchased by the plaintiff from one who bought it in at the sheriff’s sale, it was held that the measure of damages was the amount paid to repurchase the property.” (1 Sedgwick on Damages, sec. 58.) The point is directly decided by the court of civil appeals of Texas (1896) in