Smith v. Rogers

• Decision Date: 03 March 1903
• Citation: 73 S.W. 243,99 Mo. App. 252
• Parties: SMITH v. ROGERS et al.
• Court: Missouri Court of Appeals

73 S.W. 243

99 Mo. App. 252

SMITH v. ROGERS et al.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

EXECUTION — CLAIM BY THIRD PERSON — BOND OF INDEMNITY — RIGHT TO DEMAND — VALIDITY — DESCRIPTION OF PROPERTY.

1. Rev. St. 1899, § 4043, which provides that if a constable levy an execution, and one other than the defendant claims the property, the constable, before proceeding to sell, shall take from the plaintiff a bond of indemnity, authorizes the constable to demand a bond, though he has previously attached the property in the suit in which the judgment on which the execution is based was rendered.

2. Where a constable has levied an execution, and the property is claimed by one other than the execution defendant, and the constable threatens to release the property unless given a bond of indemnity, such a bond, given him under the circumstances, is a good common-law obligation, and not invalid for duress.

3. Where, in attachment, the engine levied on was a "Russell" engine, and a bond of indemnity given the constable before sale on execution described the engine as a "Birdsall" engine, the variance did not invalidate the bond; the engine being otherwise described in the bond the same as in the constable's return, and the evidence showing that the engine taken in attachment was the one which the bond was given to protect the officer in selling.

Bland, P. J., dissenting.

Appeal from Circuit Court, Newton County; H. C. Pepper, Judge.

Action by John H. Smith, on the relation of John T. McElhaney, against John A. Rogers and others. From a judgment for defendants, plaintiff appeals. Reversed.

Lyman W. White, for appellant. O. L. Cravens, for respondents.

Statement of Facts and Opinion.

GOODE, J.

John A. Rogers, one of the respondents, instituted an action of attachment before a justice of the peace in Newton county against James Lewis. A writ of attachment was issued and levied by the appellant, John H. Smith, at that time constable of the township, on a certain boiler and engine, and nothing else. Constructive service was had on Lewis, and the action proceeded to a special judgment in favor of Rogers against the property attached. A special execution was issued and delivered to the constable, whereupon a notice verified by affidavit was served on him by Benjamin Eiseman, who claimed to own the attached property as the assignee of John T. McElhaney. Rogers as principal, and J. M. Rush as surety, then executed an indemnity bond to the constable, reciting the claim of Eiseman, and the service of the written notice by the latter, verified by affidavit according to law, and covenanting to hold the officer harmless against all damages and costs which he might sustain in consequence of the seizure and sale of the property, reciting, furthermore, the issuance of the execution, and that it had been levied on the engine and boiler. The constable, being thus indemnified, sold the property. Afterwards an action was begun on the bond by McElhaney, as successor of the rights of Eiseman, who had been discharged as assignee.

Besides agreeing to indemnify the constable, the obligors in the bond agreed to pay and satisfy said Benjamin Eiseman, assignee of said J. T. McElhaney, or any person or persons claiming title to the property, for all damages which he or said person or persons might sustain in consequence of the seizure and sale. The court below held no action could be maintained on the bond. The bond was intended to be a statutory one made in conformity to the provisions of section 4043 of the Revised Statutes of 1899, and was in all respects sufficient to satisfy the requisites of a statutory bond, provided a bond is authorized by the statutes in the circumstances in which this one was given.

Respondent contends that, inasmuch as the property had been previously seized under a writ of attachment, no bond of indemnity could be required by the constable, as the statute only provides for the giving of such indemnity in cases when executions are issued on a general judgment; citing in support of this contention certain Missouri cases, and principally relying on State v. Koontz, 83 Mo. 323, in which it was held that there is no statutory provision for the exaction of an indemnity bond by an officer charged with the execution of a writ of attachment, to save him harmless from damages which may be entailed by the levy of such a writ on property claimed by some one else than the defendant in the action.

The present controversy presents itself to us, after a careful study of the evidence, in a different light from that in which it is viewed in the briefs. It is treated by the counsel of the respective parties, for the most part, as though the bond had been given as a protection to the officer in levying the writ of attachment; but in fact it was not given until after there had been a final judgment in the attachment action and a special execution issued thereon. Then it was that McElhaney's assignee, Eiseman, served notice on the officer that he claimed the property, which act caused the officer to demand indemnity of the attaching plaintiff, and this bond to be executed by him. It was therefore, a bond given to indemnify an officer against loss on account of levying an execution on personal property claimed by a stranger to the judgment, and is within the intention of the statute above mentioned, unless the circumstance that the property had already been seized by virtue of a writ of attachment excludes it from the statutory provision.

Inasmuch as the engine and boiler were already in the custody of the law, there could, of course, be no seizure under the writ of execution; that is to say, no actual caption — no taking the property by virtue of that writ. Neither was a seizure necessary to make a good and effectual levy. Where a subsequent levy of a writ is made by the same officer who levied a prior one, no overt act is required of him in making the subsequent levy. State v. Curran (St. L.) 45 Mo. App. 142. Besides, the bond itself recited that the execution had been levied, and the obligors therein ought not to defeat a recovery thereon because of a defective return. State v. Goodhue (St. L.) 74 Mo. App. 162; State v. Williams, 77 Mo. 463; Hundley v. Filbert, 73 Mo. 34.

One point for decision, then, is whether the statute in question authorizes the taking of a bond by a constable to indemnify him from loss in proceeding to sell under an execution, and to indemnify a claimant of the property, if he had previously seized said property by virtue of a writ of attachment; and this point seems never to have been determined by any appellate court in this state. State v. Koontz, supra, merely establishes that an officer with a writ of attachment is bound to decide whether he ought to levy on certain property as belonging to the defendant when a third party asserts title to or ownership of it, and has no right to exact of the attaching plaintiff an indemnity bond, and, in default of one being given, to release the property to the claimant; and that if he does release it, and it turns out the property actually belonged to the defendant, the plaintiff may maintain an action on his official bond for the wrongful release. The opinion says, and very properly, that the Legislature had failed to provide an indemnity in the case of attachment proceedings, and that an officer charged with the execution of a writ of attachment must act or refuse to act at his peril. That decision is altogether different from the proposition that if an attachment cause has gone into judgment, and an execution has been issued on the judgment, and then a verified notice is served on the constable by an outside claimant of the property, the constable may not take indemnity against possible loss in proceeding under the execution. The property has not yet been sold, and hence may be released in kind to the owner; the constable answering, of course, on his bond for damages for any injury occasioned by the levy of the attachment writ. We can perceive no sound reason whatever why the same indemnity may not be taken by an officer, when acting in obedience to an execution issued on a judgment in an attachment action, that he is entitled to take when the execution is issued on a judgment in any other form of action. Usually the judgments in attachment cases are the same in form as other judgments; that is, they are general judgments. Such is always true when personal service is had on the defendant.

The construction of the statute relied on by the respondent amounts to this: an officer is entitled to the protection of a bond like the one declared on in all cases where he has to sell property under execution except those aided by writ of attachment — a construction which would ingraft an exception on the statute unjustified by its language, and apparently not contemplated by the Legislature. Nothing in the statute lends...