Dodd v. Thomas

• Decision Date: 30 April 1879
• Citation: 69 Mo. 364
• Parties: DODD et al., Appellants, v. THOMAS.
• Court: Missouri Supreme Court

69 Mo. 364

DODD et al., Appellants,

v.THOMAS.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

Edmund T. Allen for appellants.

Felix G. Fox for respondent.

HENRY, J.

This is a proceeding for the recovery of specific personal property, commenced the 20th day of September, 1875. The defendant, then sheriff of St. Louis county, levied upon the property by virtue of an attachment issued from the office of the clerk of the circuit court of St. Louis county, on the 14th day of September, 1875, against the property of one J. T. Crenshaw, in an attachment suit instituted against him by W. E. Shryock et al. and the plaintiff herein, after said levy, to-wit: on the 17th day of September, 1875, gave this defendant notice of their claim to said property according to the provisions of an act of the General Assembly of this State, entitled “An act concerning the duties of sheriff and marshal in the county of St. Louis, in relation to the levy and sale of such property under execution or attachment, as may be claimed by third persons,” which was approved March 3rd, 1855. On receiving this notice, this defendant, in pursuance of the provisions of said act, demanded of said plaintiffs in the attachment suit, Shryock et al., a bond of indemnity with good and sufficient securities, which was executed and accepted by this defendant. While said property was so in his possession, and after said bond was executed and accepted by this defendant, this suit for the recovery of said attached property was instituted by the plaintiffs. The plaintiffs filed a demurrer to the answer, containing in substance the foregoing facts, which was, by the court, overruled, and a judgment was rendered in favor of defendant, on proper inquiry, for $733.45, from which plaintiffs duly prosecuted their appeal to the St. Louis court of appeals, where the judgment was affirmed, and from that judgment they have appealed to this court.

The only question presented for determination is with respect to the validity of the act of 1855, relied upon by the defendant. That act is as follows:

Section 1. When any sheriff, marshal, constable or other duly authorized officer, shall levy any execution or attachment on any personal property, and any person other than the defendant in such execution or attachment shall claim such property, or any interest therein, such officer may demand of the plaintiff, or his agent, in such execution or attachment, a sufficient indemnification bond, with at least two good and sufficient securities, to be approved of by such officer, and may refuse to execute such execution or attachment until such indemnification bond be given.

Sec. 2. Such bond shall be made payable to the State of Missouri, conditioned that such plaintiff will pay to such claimant all damages that he, the said claimant, may sustain in consequence of such levy, and in consequence of any sale which may be made under or by virtue of such execution or attachment, and the officer taking such bond shall return the same with such execution or attachment.

Sec. 3. No claim made to any personal property levied on as aforesaid, shall be valid or lawful as against such officer unless such claimant, or his agent, shall set forth his claim in writing, verified by the affidavit of such claimant, or his agent, describing the property claimed and stating his interest therein, and whether it is in the whole or only part thereof, and stating, also, that he is in good faith the lawful owner of the interest claimed by him in said property; that the defendant in such execution or attachment has no right or title, directly or indirectly, in said property claimed by said claimant, and that such claim is not made in collusion with said defendant for the purpose of vexing, hindering or delaying the plaintiff in obtaining his just rights.

Sec. 4. If the claimant shall be injured or damaged in consequence of any levy or sale under or by virtue of such execution or attachment, and shall, in good faith, be the owner of the interest claimed by him in the property levied on or sold as aforesaid, he, the said claimant, shall bring a civil action on such bond, in the name of the State, to his own use, against such plaintiff and his sureties, or any or either of them, in the usual manner of bringing actions on penal bonds, or may proceed thereon by motion in open court, first giving to the parties proceeded against in said bond twenty days notice of such motion.

Sec. 5. When said sheriff, or other officer aforesaid, shall take an indemnification bond as aforesaid, with good and sufficient security, he shall not be liable to such claimant for any damages or injury sustained by such claimant in consequence of such levy or sale under or by virtue of such execution or attachment.

Sec. 6. If the security in such indemnification bond shall be adjudged insufficient, such sheriff, or other officer aforesaid, and his securities, shall be liable to all parties injured, in the same manner and to the same extent as if no such indemnification bond had ever been given, unless an additional indemnification bond be given, and approved of by the court, or judge thereof, as hereinafter provided.

Sec. 7. Provides that objections to the bond may be...