W. C. WILLIAMS, J. D. WILLIAMS, C. R. WILLIAMS, ALPHA E. RUDD, by J. H. WILLIAMS, Their Attorney-in-fact, Appellants,
OLA E. HAGANS, a Widow, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Lewkowitz & Wein, for Appellants.
Mr. A. David Latham and Mr. George M. Sterling, for Appellee.
[56 Ariz. 89] ROSS C.J.
This appeal is from an order disallowing expenses of watchmen put in charge of attached property by the sheriff pending its disposition.
The plaintiffs (appellants), on February 27, 1939, commenced this action to recover from defendant (appellee) on her promissory note, principal and interest, $430.41, an attorney's fee of $35.00 thereon and one month's rental for space occupied by her in their building for a drug store at $65.00
per month, and at the same time caused a writ of attachment to be issued and levied upon such drug store, including the stock of drugs, equipment and fixtures, as security for any judgment they might obtain. The writ was served by the sheriff of Maricopa county on the day he received it (February 27, 1939) by taking possession of the store and its contents, and it remained in his possession thence until June 14, 1939, on which date judgment was rendered against defendant for $537.25, the attachment lien was foreclosed and the attached property ordered sold.
The plaintiffs' cost bill, filed in the case on June 16, 1939, amounted to $950.60. This sum is made up in part of the following item:
"For 2 watchmen, J. W. Anderson & W. R. Winton, deputy sheriffs appointed by the Sheriff of Maricopa Co., to take charge & protect goods unde writ of attachment from date of issuance of writ of attachment to and including June 14, 1939, $827.50."
(It seems to be agreed that the watchmen were paid $10.00 per day part of the time and $7.50 part of the time, and that there was only one of them on watch at a time.)
The court disallowed the above item of expense and whether the court was right is the only question [56 Ariz. 90] for decision on this appeal. It was not a question with the court as to whether watchmen were needed or as to whether if needed they were paid too much. The question was as to whether under our statutes and decisions plaintiffs had done, or caused to be done, the things necessary to entitle them to recover these expenses from the defendant.
The sheriff in executing the writ acted as the agent of plaintiffs and could of course look to them for all legal and reasonable expenditures incurred in the performance of his duty. But, in order for the plaintiffs to recover such expenses from the defendant, their incurrence, defendant insists, must be under the direction and control of the court. The statute providing such procedure is section 4253 of the Revised Code of 1928 and reads:
"Preservation of personal property. If the personal property be not replevied or claimed or sold, the court or justice of the peace, may make such order for the preservation or use of the same as shall appear to ...