WHEELER v. HURLEY
Wheeler v. Hurley
Coleman, C. J., and Ducker, J.: We concur in the order of affirmance for the reason last stated.
WHEELER v. HURLEY
WHEELER v. HURLEY
No. 2683
June 5, 1925.
236 P. 559.
Mack & Green, for Appellant:
William, S. Boyle, for Respondents:
OPINION
By the Court,
Sanders, J.:
Carl Wheeler, a judgment creditor, sued Thomas J. Hurley, sheriff of Storey County, and the Fidelity and Deposit Company of Maryland, the surety on his official bond, to recover the sum of $1,351.32 as damages for the failure of said Thomas J. Hurley as sheriff of Storey County to return an execution issued upon a judgment in the case of Carl Wheeler, plaintiff, v. Comstock Eldorado Mining and Milling Company, a corporation, defendant. The case was tried to the court without a jury. The court found for the plaintiff and rendered judgment in his favor for the sum of $175. The plaintiff, being dissatisfied with the amount of the j udgment, appeals.
It is claimed in argument that under the pleadings the trial court was without power or authority to render judgment for a less sum than the full amount of the execution, to wit, $1,351.32. In support of this contention counsel for appellant state in their opening brief that the appeal is taken for the reason that the decision of the lower court is contrary to and against the law as laid down in section 133 of the civil practice act as amended by the Statutes of 1915, p. 193, which provides that:
"Each material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true."
Paragraph 7 of the complaint reads as follows:
"That the property levied upon, under and by virtue of said writ of execution and thereby directed to be sold by said sheriff to satisfy the said plaintiff's judgment, was of the value of $2,400, and in excess of the value specified in said writ of execution and directed to be made thereby."
Paragraph 9 of the complaint reads as follows:
"'That, although more than 60 days have elapsed after delivery of said execution to the defendant and before the commencement of this action, yet he, the said Thomas J. Hurley, sheriff of Storey County, State of Nevada, as aforesaid, in violation of his duty as such sheriff failed to return the same to the damage of the plaintiff in the sum of $1,351.32, together with interest on the sum of $1,000 at the rate of 8 per cent per annum from the 26th day of January, 1923, until paid."
It is contended that the failure of the defendant to deny the allegations of paragraphs 7 and 9 of the complaint left the value of the property at $2,400; and that plaintiff was entitled to judgment on the pleading for the full amount of his debt. The question turns upon whether the allegation of paragraph 7 of the complaint is a material allegation within the meaning of the statute. A "material allegation" in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient; an allegation which the plaintiff must prove on the trial in order to maintain his action. Gillson v. Price, 18 Nev. 117, 1 P. 459. The writer is of opinion that paragraph 7 of the complaint could be stricken and yet leave the pleading sufficient to state a cause of action for damages for the defendant's failure to return the execution, as alleged in paragraph 8, within the time prescribed. As shown by paragraph 8, damages for the failure of the defendant to return the execution is the gravamen of the complaint, and not damages for the loss of the property.
It is well settled that, where a sheriff fails to comply with the mandate of a writ of execution there is not only a breach of duty, but the presumption arises that the plaintiff has been damaged the amount of the debt. The rule is that, for failure to return an execution, the measure of damages is the actual loss sustained, which is prima facie the amount of the execution. Sedgwick on Damages (9th ed.), sec. 556; Freeman on Executions (3d ed.), 368; 35 Cyc. 1727. Section 1650, Revised Laws, makes it mandatory upon a sheriff to whom any writ of execution shall be delivered to execute the same with diligence, according to its command, and to return it without delay to the proper court, with his certificate indorsed thereon of the manner of its service or execution, or, if not served or executed, the reasons of his failure. For a failure so to do, he shall be liable to the party aggrieved for all damages sustained by him on account of such neglect. Since the measure of damages is the actual loss sustained, which is prima facie the amount of the execution, we do not understand that in an action for damages for failure to return an execution it is essential for the plaintiff in order to maintain his action to allege the value of the property or that the value exceeded the amount of the judgment. We are therefore of opinion that the point raised is not well taken.
Furthermore, the plaintiff pleaded that the property levied upon was the value of $2,400 and in excess of the execution, and upon that question the plaintiff at the trial voluntarily took the burden of proof. The plaintiff gave evidence of the value of the property, and the defendant also gave evidence of its value. The cause having been tried on the part of plaintiff upon the theory that the value of the property was in issue, it is too late to invoke the rule of pleading relied upon for reversal of the judgment for the first time in this court.
Our conclusion is that the j udgment must be affirmed, and it is so ordered.
Coleman, C. J., and Ducker, J.: We concur in the order of affirmance for the reason last stated.