Rains v. Herring

• Citation: 5 S.W. 369
• Parties: RAINS and others v. HERRING and another.
• Decision Date: 14 June 1887
• Court: Supreme Court of Texas

Page 369

5 S.W. 369

RAINS and others v. HERRING and another.

Supreme Court of Texas.

June 14, 1887.

Appeal from district court, Jack county.

W. E. Taylor, W. S. Billings, T. D. Sporer, Robinson & West, and C. Edmundson, for appellants. E. P. Nicholson, Stark & Stark, and E. W. Nicholson, for appellees.

WILLIE, C. J.

This suit was brought by Mrs. L. I. Herring, joined by her husband, I. A. Herring, to recover of John D. Rains, sheriff of Jack county, and the sureties on his official bond, damages for an alleged illegal seizure by Rains of a stock of goods claimed to be the separate property of Mrs. Herring. The suit was filed on the twenty-first of December, 1885, and on the fifteenth and twentieth of January, 1886, the defendants pleaded to the suit, and on the twenty-first of the same month filed an amended answer in lieu of those pleadings; which answer, among other things, justified the seizure of the goods under a writ of attachment issued against the property of I. S. Knight, at the suit of one J. P. Besett. The answer alleged that, as to this attachment, the goods were the property of Knight, and not of Mrs. Herring. This answer included some special exceptions to the pleadings of the plaintiff, which will be considered in the course of the opinion. On the fifteenth day of January, 1886, the appellant Rains obtained leave of the court to make Besett and certain other named persons parties defendants to the cause. On the eighteenth of January he filed a written pleading, setting forth that these parties had executed to him a bond indemnifying him against damages for the acts upon which this suit was based, and made the original bond an exhibit thereto, and prayed that they be cited to answer the petition, and, if plaintiffs should recover a judgment against him and his sureties, that they have judgment over against the signers of the indemnity bond.

It appears from a bill of exceptions found in the record that the defendants moved to continue the cause for several reasons, among others because the court had allowed them to make Rains' indemnities parties defendant to the suit, and that the effect of the order was to continue the case to have these parties cited to answer, and that this motion was overruled. This action of the court is assigned as error. By an act of the legislature, approved March 31, 1885, the privilege was given to a sheriff sued for damages in such an action as this to make the parties principal and surety upon any bond he had taken indemnifying him against such damages parties defendant to the suit; and it was further provided that the cause might be continued for the purpose of obtaining service upon such parties. This statute not only recognizes in the sheriff the right to have the persons executing the bond made parties to the suit, but also to have the cause continued for at least one term for the purpose of bringing them into court. It intended to allow him to have his judgment over against the signers of the bond at the same time that judgment should be rendered against himself. It was doubtless considered better that the plaintiff should be somewhat delayed in getting judgment against the officer than that the officer should be first forced to pay the damages, and then to resort to a second suit to reimburse himself out of those through whose direction the damages had been brought about, and who had contracted to be responsible for them. To entitle the officer to the benefits of the statute, he must, of course, bring himself clearly within its provisions; he must be sued for damages for an act done in his official capacity; and he must have taken an indemnifying bond for the acts upon which the suit for damages is based. These facts must be brought to the knowledge of the...