Dewey v. Kavanagh

• Decision Date: 23 May 1895
• Parties: DEWEY ET AL. v. KAVANAGH, CLERK OF COURT, ET AL.
• Court: Nebraska Supreme Court

45 Neb. 233

63 N.W. 396

DEWEY ET AL.

v.KAVANAGH, CLERK OF COURT, ET AL.

Supreme Court of Nebraska.

May 23, 1895.

Syllabus by the Court.

1. Section 206 of the Code of Civil Procedure construed, and held: (1) That a delivery bond executed in pursuance of said section is not designed to have, nor does it have, the effect of discharging the attachment. (2) Such a bond, when executed and approved, takes the place of the attached property. (3) Such bond can be approved only by the officer holding the writ of attachment.

2. Where a clerk of a district court approved a delivery bond executed in pursuance of said section, and thereupon directed the officer holding the writ of attachment to return the attached property to the persons in whose possession it was when he attached it, and the officer did so, and the plaintiff in the attachment suit recovered a judgment, and an order sustaining the attachment; and neither said property nor its appraised value in money was forthcoming to answer said judgment, and the plaintiff in the attachment sued the clerk and the sureties on his official bond for approving said delivery bond because in fact some of said sureties thereon had not signed the same, held: (1) That it was no part of the duty of the clerk of the district court to approve such bond, and that his doing so was not an act done by virtue of his office; and that, therefore, the sureties on his official bond were not liable for such act of the clerk. (2) That the mere facts that the clerk approved the bond, and directed the sheriff to release the attached property,--in the absence of evidence of fraud or deceit practiced by the clerk,--were not alone sufficient to render him liable to the plaintiff in the attachment for the loss he had sustained by reason of the clerk's approval of the bond and the release of the property by the sheriff in obedience to the order of the clerk.

Error to district court, Greeley county; Harrison, Judge.

Action by Dewey & Stone and others against John Kavanagh and others. Judgment for defendants, and plaintiffs bring error. Affirmed.Batty, Casto & Dungan, James R. Hanna, Wright & Wright, and G. W. Scott, for plaintiffs in error.

M. B. Gearon and T. J. Doyle, for defendants in error.

RAGAN, C.

Dewey & Stone and others brought this suit to the district court of Greeley county against John Kavanagh, the clerk of the district court of said county, and the sureties on his official bond. A general demurrer was sustained to the petition, and the action dismissed. The correctness of the ruling of the district court in sustaining this demurrer is the only question presented here.

The petition alleged, in substance: That in September, 1891, the plaintiffs in error brought certain actions to the district court of said Greeley county against a copartnership by the name of Jordan & McCarthy. These actions were brought for the recovery of money. Attachments were issued, and levied upon the goods and chattels of the said Jordan & McCarthy. On the 28th of May, 1888, the sheriff of said county returned the several writs of attachment in his hands, showing that he had levied them on the goods and chattels of Jordan & McCarthy, and that he then had the said goods in his possession by virtue of their seizure under said attachment writs. That on the 7th of June, 1888, the clerk of the district court received from Jordan & McCarthy a bond in words and figures as follows: “Whereas * * *, the sheriff of Greeley county, Nebraska, did, on the 15th day of May, 1888, on an order of attachment issued out of the district court of Greeley county, * * * attach certain goods and chattels in the hands of Jordan & McCarthy in a case pending in said district court wherein Dewey & Stone et al. are plaintiffs and Jordan & McCarthy are defendants, which property is appraised at the sum of $1,362.99, and which property is now delivered to Jordan & McCarthy at their request: Now that Jordan & McCarthy, as principals, and Daniel Ford and P. H. McCarthy, as sureties, do hereby undertake to the plaintiffs in the sum of $2,725.98 that said property, to wit, a certain stock of hardware and furniture now in the store of Jordan & McCarthy in Greeley Center, Nebraska, or its appraised value in money, shall be forthcoming to answer the judgment of the court in this action. Jordan & McCarthy, by E. J. Jordan. Daniel Ford. P. H. McCarthy. Michael McCarthy.” And that Kavanagh, in hs official capacity as clerk, on said day duly approved said bond. That said Kavanagh, on said date, after the approval by him of said bond, issued to the sheriff of said Greeley county an order in writing in words and figures as follows: “State of Nebraska, Greeley County--ss.: To the Sheriff of said County: Whereas, the defendants Jordan & McCarthy have executed to the plaintiffs a bond as provided in section 206 of the Code of Civil Procedure in double the amount of $1,362.99, as stated in the bond, which...