Holdredge v. McCombs

• Decision Date: 01 March 1899
• Docket Number: 505
• Citation: 8 Kan.App. 663,56 P. 536
• Parties: H. C. HOLDREDGE et al. v. C. A. J. MCCOMBS
• Court: Kansas Court of Appeals

56 P. 536

8 Kan.App. 663

H. C. HOLDREDGE et al. v. C. A. J. MCCOMBS

No. 505

Court of Appeals of Kansas, Southern Department

March 1, 1899

Opinion Filed March 20, 1899.

Error from Sumner district court; J. A. BURNETTE, judge. Affirmed.

Cause remanded.

P. C Simons, for plaintiffs in error.

S. C Burnette, for defendant in error.

OPINION

MILTON, J.

This action was brought by C. A. J. McCombs on a constable's bond executed by H. C. Holdredge, as principal, and Wm Corzine and Ira T. Gabbart, as sureties, to recover damages for the alleged wrongful seizure and sale by Holdredge, as constable, of personal property belonging to the plaintiff below under orders of attachment issued by a justice of the peace of the city of Caldwell in certain civil actions instituted by the John Deere Plow Company against McCombs. The defendants jointly demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants, electing to stand on the same, bring the case here for review.

The petition alleged that the orders of attachment were void for the reason that they were issued by the justice of the peace without any proper or legal affidavits having been first made, and for the further reason that no attachment undertaking had been given as required by law; but it was not alleged that the constable was aware of such facts. Copies of the orders of attachment and a copy of the constable's bond were annexed to the petition as exhibits. Each order was regular on its face. The bond was in the penal sum of $ 1000 and contained the statutory conditions. The petition also alleged that without the personal knowledge of the plaintiff, and during his temporary absence from the state of Kansas (his residence being in Sumner county), the seizure and sale of his property under the orders of attachment took place, and that the total value of the property taken by the constable was $ 1580. The property was mainly wheat in the stack, and it was alleged that the constable wasted 500 bushels of the grain by reason of negligence in the thrashing thereof. It was further alleged that the constable sold the attached property at private sale. The petition did not intimate that McCombs had any defense to the actions brought by the John Deere Plow Company, and did not deny that the grounds for attachment as stated in the affidavit may have existed.

Was the demurrer to the petition properly overruled? On the state of facts as disclosed by the petition, we think it must be held that the officer was protected in making the levy, and that no action for damages lay against him or his sureties on account thereof. The overwhelming weight of authority has firmly established the rule that where a writ of attachment or an execution, "fair on its face," has been issued by a court of competent jurisdiction in the premises, the officer is protected in obeying its commands, and is not concerned with any irregularities that may exist back of it. See Cooley on Torts, 460, 463. On page 463 it is said:

"The protection the officer receives from the apparent validity of the process is personal to the officer and those called in by him to assist in the service; that is to say, it protects them against being made liable as trespassers in obeying its command."

The following from Drake on Attachments, sections 117 and 118, is applicable here:

"But though an attachment sued out without sufficient bond having been taken should be considered absolutely void as to the defendant, yet it will, unless the defect appear on the face of the writ, justify an officer in making a levy under it. It was so held in Kentucky, where, as stated in the last section, the court, on...