Smith ex rel. McElhany v. Rogers
| Decision Date | 22 November 1905 |
| Citation | 90 S.W. 1150,191 Mo. 334 |
| Parties | JOHN H. SMITH, ex rel. and to the use of JOHN T. McELHANY, Appellant, v. ROGERS et al |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Reversed and remanded.
Adiel Sherwood and J. S. McIntyre with L. W. White for appellant.
(1) Defendants were liable upon their indemnity bond, under section 423, Revised Statutes 1899. Kessler v. Gold Spring Distilling Co., 72 Mo.App. 573; Flint ex rel v. Young, 70 Mo. 221; Palmer v. Shenkel, 50 Mo.App. 571; Rebmon v. Durant, 53 Mo.App. 493; Cabinet v. White, 48 Mo.App. 404; Rivercomb v Durket, 74 Mo.App. 570. And appellant had no other remedy. (2) Even if this action were not authorized under the above section, defendants would be liable at common law upon the indemnity bond for damages to plaintiff, because the bond was voluntary, not in violation of any statute, had no illegal purpose, and did not contravene public policy. Hardw. Co. v. Greve, 18 Mo.App. 6; Barnes v. Webster, 16 Mo. 258; Williams v. Coleman, 49 Mo. 325; 1 Brandt on Suretyship & Guaranty (2 Ed.), sec. 22. A constable has the common law right to require indemnity before seizing or selling property. Shinn on Attachment, sec. 203; Smith v. Cicotte, 11 Mich. 383; Smith v. Asgood, 46 N.H. 178; Shriver v. Harbough, 37 Pa. St. 399. In addition, the constable had the common law right to require an indemnity bond before selling property upon which he had levied -- claimed by a third person. (3) Section 423, supra, applies to executions in attachment cases as well as to general executions. Dodd v. Thomas, 69 Mo. 364; Schroeder v. Moss Co., 83 Mo.App. 2. (4) The second and third instructions asked by plaintiff should have been given; they properly declare the law, and if given the appellate court would have known upon what theory of law the trial court proceeded. Cunningham v. Snow, 82 Mo. 587; Hisey v. Goodwin, 90 Mo. 366; Krider v. Milner, 99 Mo. 145; Sutter v. Raeder, 149 Mo. 297; Wheeler v. McDonald, 77 Mo.App. 213; Dollarhide v. Mabary, 125 Mo. 195. (5) The court erred in giving the instruction asked by defendants at the close of the evidence; it is in the nature of a demurrer, and should be so considered by this court. Butler Co. v. Bank, 143 Mo. 13. (6) A claimant of property may sue upon an indemnity bond even prior to a sale of the property. State ex rel. v. Mfg. Co., 149 Mo. 181.
O. L. Cravens for respondents.
(1) The personal property on this case was seized and levied on under the writ of attachment. There was never any levy under the execution issued by the justice. The character of the levy and seizure in the first instance determines the right of the constable to exact an indemnity bond. Here it was under a writ of attachment and the property was in the custody of the law, as distinguished from a mere seizure under an execution. Where property has been seized by a constable under a writ of attachment there is no provision of the law authorizing the giving of an indemnity bond. State to use v. Koontz, 83 Mo. 330; State to use v. Furniture Co., 22 Mo. App 109; State to use v. Fitzpatrick, 64 Mo. 189; State to use v. Reyburn, 22 Mo.App. 303; Gibson v. Locke, 58 Miss. 298. (2) There is a local statute, applicable alone to the city of St. Louis, authorizing the constable or sheriff to demand a bond of indemnity in attachment cases, but it can not be that this statute is invoked here. State to use v. Reyburn, 22 Mo.App. 109; State to use v. Furniture Co., 22 Mo.App. 185; Kreher v. Mason, 25 Mo.App. 291; Kessler v. Company, 72 Mo.App. 573; Dodd v. Thomas, 69 Mo. 364; Schroeder v. Company, 83 Mo.App. 2. (3) The point that this bond is good and can be enforced as a common law bond is not tenable. 1. This action is not to enforce a bond at common law. The case was tried in the lower court upon the theory that it was a valid bond given under the statute, and plaintiff will not be permitted to change front in this court and contend that it is now good as a common law bond. 2. Under the common law the constable had no right to demand of the plaintiff a bond of indemnity before he shall levy an execution even. State ex rel. v. Koontz, 83 Mo. 330; 10 Am. and Eng. Ency. Law (1 Ed.), 425. A statutory bond, being itself invalid under the statute, can not be enforced as a common law bond. Pierce v. Kingsbury, 63 Mo. 259; Kick v. Merry, 23 Mo. 72; Thornton v. Railroad, 42 Mo.App. 58; Johnson v. Ragsdale, 73 Mo.App. 594; Harrington v. Crawford, 136 Mo. 467. (4) It is a mistake to say that McElhany had no other remedy. The indemnity bond being void, he could sue in replevin, or sue the constable and defendants, Rogers and Rush both, in trespass. Or he need not have filed a claim with the constable. Palmer v. Shenkel, 50 Mo.App. 571; Cabinet v. White, 48 Mo.App. 404. McElhany also had his action on the attachment bond. (5) There are a line of cases in this State which hold that where a bond is executed in response to the demands and requirements of a statute, which omits part of the conditions specified in the law, the bond is nevertheless valid as to the conditions contained in it. In all those cases, however, it was the legal duty of the plaintiff to give a bond, and the rule is declared that where the bond "merely falls short of the statutory enumeration in such a manner as to be more favorable to the party executing it," he is bound by it to that extent. State to use v. Berry, 12 Mo. 376; Flint ex rel. v. Young, 70 Mo. 221. But where, as here, there was no warrant in law for the taking of the bond, it can not be upheld as a binding obligation. (6) No principle is better settled than that plaintiff must recover on the bond according to its strict letter. Beyond that the law will not go in enforcing liability. Rothman v. Kermis, 79 Mo.App. 111; Hardcastle v. Hickman, 26 Mo. 475; Nofsinger v. Hartnett, 84 Mo. 549; State to use v. Boon, 44 Mo. 254.
This is a suit upon an indemnifying bond, executed by the defendants to the plaintiff Smith, to hold him harmless on account of the levy of a special execution in an attachment proceeding, lately pending in Newton county, Missouri, wherein the defendant Rogers was the plaintiff, and one James Lewis was the defendant. After the levy, one Benjamin Eiseman claimed to own the property, and the defendant Rogers as principal, and the defendant Rush as surety, executed the indemnifying bond to the plaintiff Smith, the constable who made the levy. Afterwards Eiseman assigned his claim to the plaintiff McElhany, who instituted this action on the bond, the constable having sold the property levied on and applied the proceeds to the payment of the debt owing to the defendant Rogers by said Lewis. The circuit court held that the plaintiff could not recover on the ground that the statutes of this State do not authorize or recognize an indemnifying bond in cases where the suit was in attachment and the writ was a special execution, and where the defendant in the attachment suit was not personally served so that a general judgment could be rendered against him. From that judgment the plaintiff appealed to the St. Louis Court of Appeals. The decision in that case is reported in 99 Mo.App. 252. The majority of the Court of Appeals, in a learned and exhaustive opinion by Goode, J., reversed the judgment of the circuit court and ordered the cause remanded for a retrial, holding that as the levy in this case was under a final judgment, the case fell within the provisions of section 4043, Revised Statutes 1899, which authorizes a constable to demand an indemnifying bond where the property levied on is claimed by a third person, and that the case was properly distinguishable from the decision of this court in State ex rel. v. Koontz, 83 Mo. 323. But one of the judges of the St. Louis Court of Appeals dissented, for the reason that he deemed the opinion to be in conflict with the Koontz case, and upon his request the cause was certified to this court, and under section six of the amendment of 1884 to article six of the Constitution, the duty is devolved upon this court to re-hear and determine the cause as in case of jurisdiction obtained by ordinary appellate process.
The facts in judgment are few and undisputed. They are these: The defendant Rogers instituted a suit in attachment against one James Lewis before a justice of the peace in Newton county. The constable levied the attachment on a certain boiler and engine. Lewis was not personally served, but was brought into court by constructive notice. Rogers obtained judgment by default, and a special execution was issued and ordered to be levied upon the boiler and engine. After the levy Eiseman, as assignee, for the benefit of the creditors of John T. McElhany, gave the constable notice, in writing, duly verified, that he claimed the property. Thereupon the constable demanded of Rogers an indemnity bond, and Rogers as principal, and Rush as surety, executed and delivered to the constable the indemnity bond sued on. The bond was conditioned as follows: ...
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