Cousins v. Paxton & Gallagher Co.
| Decision Date | 28 January 1904 |
| Citation | 98 N.W. 277,122 Iowa 465 |
| Parties | L. B. COUSINS, Sheriff, v. PAXTON & GALLAGHER COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. O. D. WHEELER Judge.
THE defendants Paxton & Gallagher sued out a writ of attachment against the property of their debtor, which was levied by the plaintiff upon a stock of goods. Thereafter a third person E. Myers, served notice on him of the ownership of the goods levied upon, and Paxton & Gallagher thereupon furnished him an indemnifying bond according to the provisions of sections 3906, 3991, and 3992 of the Code. The plaintiff held the property for some time, but the action was finally dismissed by the defendants, and the levy released so far as their claim was concerned. Myers afterwards began an action against the plaintiff sheriff and Paxton & Gallagher for the conversion of his property taken under the writ. The defendants were nonresidents of the state, and, as we understand the record, no service was made on them by Myers but the plaintiff immediately notified them that he had been sued, and requested them to defend the suit, which they absolutely refused to do. He thereupon employed counsel to defend for him. After the case had gone over a term or two Paxton & Gallagher were brought in. They had their own attorneys, who, with the attorneys employed by the plaintiff, tried the case for the defendants. The trial resulted in a judgment against the sheriff and Paxton & Gallagher, which, with the costs, was paid by Paxton & Gallagher. This suit was brought by the plaintiff to recover upon the bond the attorney's fees for which he became liable in defending that action. There was a trial to the court, and a judgment for the plaintiff. The defendants appeal.
Reversed.
Rich & Clapp and Stillman & Price for appellants.
Mayne & Hazelton for appellee.
The bond undertook to indemnify the plaintiff against all damages which he might sustain in consequence of the seizure or sale of the property levied upon. The defendants contend that attorney's fees actually paid by the sheriff in protecting his levy would not be recoverable on the bond that the bond provides only for indemnity against damages actually paid; and that no action can be maintained thereon in this case, because the plaintiff has not paid the attorney's fees for which he sues. This is a statutory bond, and, in determining whether attorney's fees may be recovered thereunder, we must look to the purpose and scope of the statute providing therefor, as well as to the intention of the obligors in making it, construed in the light of the circumstances surrounding its execution, the situation and relations of the parties, and the object to be accomplished by it. When the sheriff receives notice from a third party that he is the owner of the property which has been levied upon he is no longer bound to hold the property, unless an indemnifying bond is given as provided by law. Upon a failure to give such bond, the officer may release the property upon which he has levied, and by so doing escape all liability by reason of the levy. But after the bond has been given as provided by the statute, he is bound to hold the property and to protect the levy, and if he fails in this respect he does so at his peril. Evans & Son v. Thurston, 53 Iowa 122, 4 N.W. 895; Wadsworth v. Walliker, 51 Iowa 605, 2 N.W. 420. The purpose then, of the bond, is to compel the officer to do that which he would be under no obligations to do if it were not given him, and, by the very act of delivering the bond to him, the attachment creditors advise the officer that he must hold the property and protect the levy, and this with the knowledge that another than the attachment defendant has already taken the preliminary steps necessary to contest the right of the officer to hold the property. It is clear, then, that the purpose of the bond and the intention of the makers is to indemnify the officer against all damages which he may sustain in protecting the levy and the interest of the obligors in any and all litigation which may arise by reason of seizing and holding the property. The obligation of the bond is that it will indemnify against "all damages." This is broad language, and must be construed to include every element of damages which may fairly be said to have been contemplated by the parties. An officer can have no personal interest in...
To continue reading
Request your trial
-
Prudential Ins. Co. of Am. v. Goldsmith
...Co. v. Baldrich, 185 N.W. 468; Duke v. Taylor, 240 N.W. 319; Central Trust Co. v. Louisville Trust Co., 100 Fed. 545; Cousens v. Paxton & Gallagher, 98 N.W. 277; Ancient Order of United Workmen v. Mooney, 79 Atl. 233; Harris v. Taylor et al., 150 Mo. App. 291, 129 S.W. 995; Citizen's Trust ......
-
Zieman v. U.S. Fid. & Guar. Co. of Balt., Md.
...the fuel company was not paid, and consequently the covenant was not broken. Wilson v. Smith, 23 Iowa, 252;Cousins, Sheriff, v. Paxton & Gallagher Co., 122 Iowa, 465, 98 N. W. 277,” and other cases. See, also, Aplin v. Smith et al., 197 Iowa, 388, 197 N. W. 316;Globe v. American Bonding & C......
-
Zieman v. United States Fidelity & Guar. Co. of Baltimore, Maryland
...the fuel company was not paid, and consequently the covenant was not broken. Wilson v. Smith, 23 Iowa 252; Cousins, Sheriff v. Paxton & Gallagher Co., 122 Iowa 465, 98 N.W. 277," other cases. See also Aplin v. Smith, 197 Iowa 388, 197 N.W. 316; Globe N. F. Ins. Co. v. American Bonding & Cas......
-
Hartford Accident & Indemnity Co. v. Natchez Inv. Co
... ... Rep ... 745; Rice v. National Credit Ins. Co., 41 N.E. 276, ... 277, 164 Mass, 285; Cousins v. Paxton & Gallagher ... Co., 98 N.W. 277, 278, 122 Iowa 465; Finley v. united ... States ... ...