Baxter v. Ray

• Decision Date: 10 December 1883
• Citation: 17 N.W. 576,62 Iowa 336
• Parties: BAXTER v. RAY ET AL
• Court: Iowa Supreme Court

17 N.W. 576

62 Iowa 336

BAXTER v. RAY ET AL

Supreme Court of Iowa, Des Moines

December 10, 1883

Appeal from Union Circuit Court.

ACTION upon an indemnifying bond executed by the defendants pursuant to the provisions of Code, § 3056. There was a judgment upon a verdict for plaintiff. Defendants appeal.

AFFIRMED.

S. S Denning and D. W. Higbee, for appellants.

McDill & Sullivan, for appellee.

OPINION

BECK, J.

I.

A constable held five executions, issued upon as many judgments, against J. A. Baxter. Two of the judgments were in favor of one of the defendants, two in favor of another, and one in favor of the third. The writs were levied upon certain promissory notes as the property of the defendants in execution. Thereupon plaintiff caused a notice to be served upon the constable, as prescribed in Code, § 3055, claiming the property in the notes, and demanding possession thereof. There was but one notice, and it referred to and was made applicable to all the executions by its express terms. Thereupon the plaintiffs in execution, the defendants in this case, united in an indemnifying bond required by Code, § 3056. This bond recites the five judgments, naming the plaintiffs in each, the levy of the executions, the notice to the constable served by plaintiff, and other particulars. It is conditioned, as the statute requires, to pay to any claimant of the property the damages he may sustain in consequence of the seizure and sale of the property. The action is brought upon this bond.

II. The defendants in the court below, by objection to the introduction of the notice and bond in evidence, and by instructions to the jury asked by them, insisted that a separate cause of action arose upon each execution, and that there should have been a separate bond and notice applicable to each, instead of one applicable to all, and that there is a misjoinder of defendants and of causes of action. These objections are renewed in this court.

The purpose of the provision of the Code above cited requiring upon notice in writing given by the claimant of property levied upon by execution, an indemnifying bond to be executed and returned with the execution, is the protection of the officer and the claimant of the property. The latter, in case he establishes ownership of the property in himself, may recover the damages he has sustained by the seizure and sale of the property, which would ordinarily be the value of the property. When, as in this case, several executions at the same time are levied upon the property, which is sold upon the writs, there is not and cannot be successive and separate seizures and sales upon the separate executions, but the property is seized and sold upon all the executions as one act. This is true, though the officer may make separate returns to each writ. While the writs are in his hands, he acts upon all together, and not upon each separately. No possible benefit to any party could be attained by requiring separate notices and separate bonds for each execution. And no possible prejudice could have resulted to defendants by there being but one...