Fodness v. Juelfs

Citations

• 13 S.D. 145
• 82 N.W. 396
• 1900 S.D. LEXIS 107

Syllabus

<p>1. Comp. Laws, g 6117, provides that constables to whom executions from justices’ courts are directed shall have all the powers of sheriffs in levy and sale thereunder, provided that notice of sale shall not bo given by publication in a newspaper, but by posting-notices at public places in the county. Held, that the proviso applies equally to sheriffs when acting- under executions from justices’ courts, and that a sheriff to whom such an execution is directed, having given notice of sale only by publication in a, newspaper, is not protected by such process, but is liable for the value of the property sold.</p> <p>2. No request for an instruction for a verdict for defendants, or motion to dismiss on account of the failure of the evidence to conm-ct them with a tortious taking, having been made, it will be presumed, on appeal, in order to sustain a verdict for plaintiff, that there was such evidence.</p> <p>3. It is not error, in an action against a sheriff for wrongful execution sale, to instruct that, if the jury find plaintiff to have been the owner of personal property wrongfully taken or in possossion thereof at the time of taking, she is entitled to recover, since possession is presumptive evidence of ownership against all persons not themselves owners.</p>