* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 694, n. 98; Executions, 23CJ, p. 980, n. 96, 97; Judgments, 34CJ, p. 962, n. 79; Sheriffs and Constables, 35Cyc, p. 1644, n. 78. This suit is by the appellant, Mrs. C.T. Breithaupt, against A.E. Dean, ex-sheriff, to recover damages for the wrongful levy of an execution upon her Ford car. There was a verdict and judgment in favor of the ex-sheriff, Dean, from which Mrs. Breithaupt appeals.
In the year 1922, D.C. Dorsett obtained a judgment against Mr. C.T. Breithaupt, husband of the appellant, and had execution issued and placed in the hands of the sheriff, A.E. Dean, appellee herein, and the sheriff levied on the Ford automobile as the property of Mr. Breithaupt. Mrs. Breithaupt notified the sheriff that the automobile belonged to her and that she expected to hold him for damages if he seized it under execution. The sheriff proceeded to levy on the car, and stored it away, where it remained for about a year. The sheriff did not take an indemnifying bond from the plaintiff in execution, as he could have done under the statute on the subject.
Mrs. Breithaupt filed a claimant's affidavit for the car, and at the trial established the fact that she owned it, and a verdict and judgment was rendered in her favor. The case was appealed to the supreme court and affirmed (Dorsett v.Breithaupt, 133 Miss. 457, 97 So. 756), thus establishing title to the property in Mrs. Breithaupt. When the mandate of the supreme court reached the lower court, possession of the car was finally obtained by Mrs. Breithaupt. She then entered this suit to recover *Page 296 damages against the ex-sheriff, Dean, for the wrongful seizure and detention of her property, which resulted in a judgment against her.
At the trial of the instant case the court permitted the appellee, Dean, to reopen the question of the ownership of the car, and allowed him to introduce evidence to show that the car belonged to Mr. Breithaupt, the judgment debtor, at the time he seized it under the writ of execution. This was objected to by Mrs. Breithaupt, who had introduced the court records showing that the title to the car had been adjudged to be in her and not in her husband.
At the conclusion of all the testimony, Mrs. Breithaupt requested a peremptory instruction to find for her in some amount of damages for the wrongful seizure of the car by the appellee, Dean. The court refused to grant the peremptory instruction, but allowed the case to go to the jury on the question as to whether the car belonged to Mr. Breithaupt, judgment debtor, at the time that it was seized under the writ of execution; and from this ruling, Mrs. Breithaupt excepted and now urges a reversal upon that ground.
As we understand the case, it is clear to us that the seizure of the car under execution was wrongful, and the owner, Mrs. Breithaupt, appellant, is entitled to recover from appellee, Dean, the actual damages suffered by her for the wrongful seizure, and the lower court erred in not granting a peremptory instruction to that end, as requested by the appellant.
In the former trial, under the claimant's issue, Mrs. Breithaupt was adjudged the owner of the car as against the alleged ownership of her husband, the judgment debtor. The judgment of the court in putting the title in Mrs. Breithaupt as against her husband was conclusive as to the question of title, and the sheriff, who had levied the execution, was precluded from showing that the title was in the judgment debtor. *Page 297
The question of the ownership of the car as between Mr. Breithaupt and Mrs. Breithaupt was settled by the judgment of the court, and the sheriff, who therefore wrongfully seized the car after notice, and without requiring an indemnifying bond, is now barred from reopening the question of title to the car, because his only defense to the instant action would be to show that the car belonged to the judgment debtor when he seized it; and since the court finally adjudged in the former suit that the car did not belong to the judgment debtor, but was the property of Mrs. Breithaupt, the title in Mrs. Breithaupt cannot now be questioned in this case. Therefore the peremptory instruction to find for the plaintiff, Mrs. Breithaupt, should have been given by the court, and the only question that the jury should have passed on was the amount of actual damage suffered by appellant on account of the wrongful seizure and detention of her automobile.
The measure of damages recoverable in the case would be the actual damage to the car by deterioration while held in storage by the sheriff and a reasonable amount for the use of the car for the convenience of the owner. To be more explicit, the damage to the car would be the difference in its value at the time when returned and its value if Mrs. Breithaupt had kept it and used it up to the date of its return, and the loss of its use as a convenience. The injured party should be made whole. The sheriff not having protected himself with an indemnifying bond when he levied upon the car, the loss will fall upon him.
There are some other questions raised on this appeal which we think unnecessary to decide at this time, and for that reason we omit the consideration of them. The appellee suggests in his brief that a demurrer to the declaration filed by him should have been sustained by the court, and that the court erred in overruling it; but we cannot consider this point, because there is no cross-appeal *Page 298 and, besides, the record is in such confusion in regard to what action the court took on the demurrer that we could not intelligently pass upon the question even if there had been a cross-appeal.
In view of the above conclusions, the judgment of the lower court is reversed and the case remanded for a new trial on the question of damages only.
Reversed and remanded.