Witkowski v. Hern

Foote, C. This action was brought against a constable, his sureties on his official bond, and two other persons, John McGinley and F. M. Shultz, for damages resulting from the carelessness of the defendant as such officer in not preserving and taking care of the personal property of the plaintiff, P. H. Nelson (now dead), so that it became damaged. The cause was revived after the death of Nelson in the name of his executors, S. Witkowski and Albert Nelson, and upon the overruling of a demurrer filed to the third amended complaint, the defendant answered, and the cause was tried before a jury, A motion for a new trial was denied, except as to McGinley and Shultz, and the jury returned a verdict for the plaintiff in the sum of three hundred dollars, against the constable Hern and his sureties. From the judgment thereupon rendered, and an order denying a new trial, this appeal is taken.

The demurrer, it is claimed, should have been sustained, because, as is asserted, the complaint does not show any facts which would entitle the plaintiff to recover against the constable and his sureties.

The argument is, that no trespass is claimed, and that the other facts alleged do not show any violation of official duty imposed by law. The gist of the action as brought, and the evidence in support of the plaintiff’s contention, shows that the negligence of the constable in allowing the plaintiff’s property after seizure, under a suit of attachment, to become damaged was what was relied on to enable the plaintiff to recover.

Conceding that the complaint shows that the defendant Hern, as a constable, seized the property in dispute under a proper writ, yet if he so used the property in his custody as that by his carelessness or negligence it was damaged, he and his sureties were responsible for the non-performance of his official duty. And hence the demurrer was properly overruled.

The answer admits that Hern, as constable, by vir[606]tue of the writ of attachment, held possession of the property involved here until about a year after its seizure, when he returned it to Nelson, the plaintiff, but denies that during such time as he held it as an officer any damage resulted to it from his carelessness or negligence, so that the whole matter as to the claim for damages turned upon the question as to whether or not the property was so carelessly and negligently cared for by the constable, while it was in his official custody for about a year, that the plaintiff suffered the damages which he claimed and recovered.