Stewart v. Thomas
| Decision Date | 31 October 1869 |
| Citation | 45 Mo. 42 |
| Parties | E. C. STEWART, Defendant in Error, v. THOMAS, ADM'R OF BALL, et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Sixth District Court.
D. P. Dyer, for plaintiffs in error.
Alexander & Lewis, for defendant in error.
The plaintiff, who was sheriff of St. Charles county, levied upon certain property at the suit of defendant Thomas, as administrator of Ball's estate, against one T. P. Grantham. The property was claimed by third persons, and upon trial of their right in sheriff's court, the issue was found in their favor, and thereupon the defendants executed a bond of indemnity to the sheriff, and directed him to proceed and sell, which he did. Afterwards, Ashby, as trustee of Mrs. Mary D. Grantham, claims the property, and brings suit upon the bond, in the sheriff's name for his use. That case came to this court, and is reported in 35 Mo. 209. It was there held that no one but the actual claimant, whose right had been tried, could avail himself of the statutory remedy upon the bond in the name of the sheriff, but the court intimated that this claimant had his remedy against the sheriff himself.
Afterwards, Ashby, as trustee, commenced suit against the sheriff, he entering his appearance without process, which is the action now before us, and the sheriff failed to notify the defendants, the makers of the bond, that suit was being prosecuted and they must defend, although he had told one of them that suit was threatened. He also failed to make any defense himself, and judgment was rendered against him by default for the value of the property so sold by him, interest, etc.; which judgment he has satisfied, and now brings this suit to recover back the money.
Upon the trial in the Circuit Court, the jury were instructed, at the instance of the plaintiff, that if he had paid and satisfied a valid judgment against him, and in favor of the claimant, on account of the levy and sale, he was entitled to recover, unless it was shown that the judgment was the result of fraud and collusion between the claimant and plaintiff.
The defendants then asked for ten somewhat voluminous instructions, covering several points unnecessary to be considered, all of which were refused by the court; but among the positions they desired the court to assume were the following: 1st. No one can in any manner avail himself of the bond, except the persons who claimed the property before the bond was given, whose right had been tried by the sheriff's jury, and to meet whose claim it was executed. 2d. If the sheriff, the present plaintiff, had a good defense to the action against him and failed to avail himself of it, he cannot recover upon the bond, unless he notified the makers of the pendency of the action against him, and it is not sufficient that before suit was brought he told them that it was threatened....
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