'69 ARK.] HUDGINS V. BEAVD ■RS. 577• HUDbINS V. BEAVERS. Opinion delivered October 26, 1901. COSTS — MOTION TO RETAx.—A deputy sheriff instituted an independent • action in a justice's court on a claim ex contractu against the plaintiff in an attachment suit for his fees in taking care of the at-- tached property. On appeal to •the circuit court, relief on the contract was refused, but the suit was treated as a motion to retax the costs in the attachment proceeding, and judgment was ren-. dered for plaintiff. Held, error, because the costs involved did ' not accrue in the proceeding at bar, and because neither the sheriff nor any of the parties in the attachment proceeding had moved therein for a retaxing of the costs. Appeal from Polk Circuit Court. WILL P. FEAZEL, Judge. Pole McPhetridge, for appellant. No' amendment will be -allowed on appeal to circuit court which changes tile cause of action -tried in the justice's court. Sand. & H. Dig., § 4447; 35 Ark. 445;44 Ark. 375; 46 Ark. 354. RuNN, C. J. This was a suit before one of the. justices of the peace of Polk county, for services rendered ml taking care of personal property, taken under an order of attachment, during_the pendency of the attachment proceedings. The plaintiff, Bob Beavers, laid his claim first at $75 for the services and then after--wards at $105 by way of amendment to his complaint for the thirty-five days which he had the goods in his charge. Judgment for plaintiff in justice's court, and defendant appealed to the circuit court. 69 Ark.-37
578 111AGINS v. BEAVERS. [69 ARK. The evidence shows that Bob Beavers, the plaintiff, was a regular deputy of D. B. Joplin, sheriff of the cohnty, who had attached the property in question through another deputy. The proof by the 'plaintiff Was to the effect that his services were worth $3 per day, and that he kept the goods thirty-five days until they were released to the defendant in the suit, as exempted property, and the costs adjudged against Hudgins Bro., the plaintiffs also in that suit. It was shown by the defendant, on the other hand, that plaintiff's services were only worth -$15 -or -$20, or, at least, that the same goods might have been kept for the same time in a safe place for that aniount. This was the testi-n -6u •of the sheriff himself. No claim for these services as costs in the original suit was ever presented by the 's. hetiff, : bift The deputy sues 'for the same in this independent suit, as -per contract between himself and the defendants. In the circuit court it was suggested that it is contrary to public Tiolicy -for -a 'deputy sheriff sto make a claim of this 'kind, as the goods were in the custody nf 'his principal, and could iiot be taken from the sheriff's custody by any arrangement between him and one -of the : parties to the shit. The circuit &kart tOok this vie* of it, Ind dismi§"sed 'the '§uit as on contract, and permitted it, oVer the -objeCtion of d g fendaht, to progress, tfedting it as a motion t6 'fetal 'the 'costS, 'arid rehared judgineht In favor of plaihtiff for the sum of $25 and costs. Proth this judgment the defendant appeals to this court. There is no appeal frOm the judginent 'of the circuit court dismissing the contract suit, the cause appealed from the justice of the peace court, and all parties seem to have acquiesced in that. The circuit court was without jurisdiction to adjudicate the malter as a rhotioh to reta± the chsts, Tot the 'cads intolVed bad nht hccrued in , this proceedihg, and heitlier the sheriff nor any 'of the parties in the attichnient proceeeThig had 'inOved for a letaxihg of the Costs. NOr was there ever any motioh for Mit purisose. The judgment is therefore reversed, -and. the cause dismissed: without prejudice.
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