Shapleigh Hardware Co. v. Perry Bros.

The first assignment of error in this case is as follows: “There is no statute permitting an allowance of this kind to be made to a so-called ‘custodian’; there is no such officer known to our law; and such an allowance and judgment, in pursuance thereof, is nugatory, and not authorized by statute.” Section 3249 of Mansfield’s Digest, as made applicable to the Indian Territory, requires the marshal or other officer ‘ ‘to safely keep all property taken or *240seized under legal process, and he shall be allowed by the court the necessary expenses of doing so, to be paid by the plaintiff, and taxed in the costs.” In the case at bar the account for the custodian’s services was presented to the court by the custodian himself. It should have been presented by the marshal. But no exception was taken at the time on this ground. If exception had been taken, the court would have allowed an amendment, so as to show that the marshal presented the account for the use of the custodian appointed by him. The effect, so far as the appellants are concerned, would have been the same. They are not prejudiced by the error; and, as they did not take an exception at the time, it is now too late to do so.

The second assignment of error in the case at bar is that “the notice required by law was not given to the sureties or to the Shapleigh Hardware Company. ” The judgment for the debt and sustaining the attachment was entered on the 17th day of November, 1896. Thereafter, on the 20th day of March, 1897, the appellee, George W. Brittain, filed his account for services as custodian of the property, and on the 27th day of March, the court allowed one half of the amount, namely $76.87, to be paid at once, and postponed, for further consideration, the remaining half of the account; and on the 2d day of December, 1897, the following proceedings were had: “On this day comes on to be heard, the same being a regular day of the term of the court, and come all parties in interest, to wit, Shapleigh Hardware Co., G. A, Cobb, and Joe Bogy, the last two being sureties in the cost bond of said Shapleigh Hardware Co., plaintiffs, and Perry Bros., a partnership, composed of H. T. V. Perry and A. E. Perry. Defendants have had due notice that this cause would be heard during the regular court hours of this day, and proper proof having been made to such service of said notice, and said H. T. V. Perry and A. E. Perry being present in open court, the court doth hear the application of *241said Geo. W. Brittain for Ms further allowance in the aforesaid cause of custodian fees, and, being well and sufficiently advised in the premises, doth consider and adjudge that the said Geo. W. Brittain have and recover of said Shapleigh Hardware Co., a corporation, G. A. Cobb, and Joe Bogy, the further sum of §76.37.” This record disposed of the contention of appellants that “the notice required by law was not - given to the sureties or to the Shapleigh Hardware Company.” The parties actually appeared without objection, and such appearance was a waiver of any irregularity in the notice, or even of any notice whatever.

The third and fourth assignments of error have been disposed of in passing upon the first error assigned.

The fifth is that “the allowance of $153.75 was excessive for fifteen days ’ service, even if it had been made to the marshal. ” There is no evidence in the record in reference to the Mnd of services rendered by the custodian, or their value. This court will assume, therefore, that the evidence before the trial court was ample to support the judgment. The appeal in this case was taken from the final order of the court allowing the custodian the further sum of $76.37. A previous order had been entered, allowing the custodian the other half of his account. These two orders were made in the same case. No appeal has been taken on account of the first allowance. Hence the order for that half of the claim stands unaffected by the appeal taken in this case. As the judgment for the remaining half of the custodian’s demand . will be affirmed by this court, the whole amount allowed the custodian by the two orders of the court, namely, $153.75, will stand as the judgement of the court below as to the fees to be allowed the custodian by the two orders in this case. The judgment of the court below is affirmed.